LIMITED LIABILITY COMPANY AGREEMENT OF EDUCATION FIRST MARKETING LLC

Exhibit 10.18

LIMITED LIABILITY COMPANY AGREEMENT

OF

EDUCATION FIRST MARKETING LLC

TABLE OF CONTENTS

     This Table of Contents does not form part of the Agreement to which it is attached but is inserted for convenience only.

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LIMITED LIABILITY COMPANY AGREEMENT

OF

EDUCATION FIRST MARKETING LLC

     LIMITED LIABILITY COMPANY AGREEMENT of EDUCATION FIRST MARKETING LLC (the “ Company ”), dated as of September 9, 1996, between TCB Education First Corporation, a Delaware corporation (“ TCB Sub ”), and Student Loan Marketing Association, a government-chartered private corporation (“ Sallie Mae ”).

RECITALS

     WHEREAS, the parties hereto desire to form a limited liability company under the Act (as defined below) for the purposes stated herein.

     NOW, THEREFORE, in consideration of the premises and covenants contained herein, the parties hereto agree as follows:

ARTICLE I

FORMATION OF THE COMPANY

     Section 1.1. Formation of the Company . The Members (as defined below) hereby form a limited liability company under the Act. The Members shall accomplish all filing, recording, publishing and other acts necessary or appropriate for compliance with all requirements for the formation and operation of the Company as a limited liability company under this Agreement and the Act and under all other laws of the State of Delaware and of all other jurisdictions in which the Company may conduct business. The Company shall not be required to deliver a copy of the Certificate (as defined below) or any amendments thereto to any Member.

     Section 1.2. Name . The name of the Company is “Education First Marketing LLC”.

     Section 1.3. Business of the Company . Subject to the limitations on the activities of the Company otherwise specified in this Agreement, the Company may engage in any activity or business in which a limited liability company may lawfully engage under the Act; provided , however , that, notwithstanding any other provision of this Agreement to the contrary, the Company shall under no circumstances engage in any activity which is not legally permissible for a national bank.

     Section 1.4. Location of Principal Place of Business .

The location of the principal places of business of the Company are Florida and New York or such other location as may be determined by a Majority in Interest of the Members (as defined below). In addition, the Company may maintain such other offices as may be determined by a Majority in Interest of the Members at any other place or places within or without the State of New York.

     Section 1.5. Agent for Service of Process . The agent for service of process in the State of Delaware shall be The Corporation Trust Company. The appropriate Officers (as defined below) may, at any time, designate an additional agent or agents to receive service of process on behalf of the Company.

     Section 1.6. Term . The term of the Company shall commence on the date hereof, and shall continue until the Dissolution Date (as defined below), unless either (a) the Company is earlier dissolved and terminated in accordance with the provisions of this Agreement or (b) a Majority in Interest of the Members agree in writing to the extension of the term of the Company.

ARTICLE II

DEFINITIONS

     Section 2.1. Definitions . Unless the context otherwise requires, the following capitalized terms shall have the meanings indicated in this Section 2.1:

     “ Accountants ” means such firm of independent public accountants as shall be engaged by the Company (in accordance with Section 7.13) in connection with any audit of any financial statements.

     “ Act ” means the Limited Liability Company Act, Chapter 434 of Title 6 of the Delaware Code, 6 Del. Code §18-101 et seq., as in effect on the date hereof and as it may be amended hereafter from time to time.

     “ Adjusted Capital Account ”, at any time, with respect to the Capital Account of any Member shall equal the Member’s Capital Account at such time (x) increased by the sum of (A) the amount of the Member’s share of partnership minimum gain (as defined in Regulation Section 1.704-2(g)(1) and (3)), (B) the amount of the Member’s share of partner nonrecourse debt minimum gain (as defined in Regulation Section 1.704-2(i)(5)) and (C) any amount of the deficit balance in its Capital Account the Member is obligated to restore on liquidation of the Company pursuant to this Agreement or is treated as obligated to restore pursuant to Regulation Section 1.704-1(b)(2)(ii)(c) and (y) decreased by

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reasonably expected adjustments, allocations and distributions described in Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6). This definition shall be interpreted consistently with Regulation Section 1.704-1(b)(2)(ii)(d).

     “ Affiliate ” means, with respect to a specified Person, (i) any Person directly or indirectly owning, controlling or holding with power to vote a majority of the outstanding voting securities or other voting ownership interests of the specified Person, (ii) any Person a majority of whose outstanding voting securities or other voting ownership interests are directly or indirectly owned, controlled or held with power to vote by the specified Person, (iii) any Person directly or indirectly controlling, controlled by, or under common control with the specified Person, (iv) a partnership in which the specified Person is a general partner, (v) any officer or director of the specified Person, and (vi) if the specified Person is an officer, director, general partner or employee, any other entity for which the specified Person acts in any such capacity.

     “ Agreement ” means this Limited Liability Company Agreement, as amended, modified or supplemented from time to time.

     “ Applicable Restrictions ” has the meaning specified in Section 13.2(b).

     “ Banking Approvals ” means all consents, approvals and actions of, filings with and notices to the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency and any other federal or state regulatory authority responsible for supervising banks or bank holding companies necessary to permit Chase and the other parties to the Venture Agreements to perform their obligations under this Agreement and the other Venture Agreements and to consummate the transactions contemplated hereby and thereby.

     “ Bankruptcy Law ” means, with respect to any Person, (i) the Bankruptcy Reform Act of 1978, as amended, and the rules and regulations promulgated thereunder or (ii) any other law in any jurisdiction applicable to such Person relating to bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement or winding-up, or composition or readjustment of debts of such Person.

     “ Board ” means the board of Representatives established pursuant to Article XII.

     “ Book Value ” means, with respect to any Company Asset as of any date, such Company Asset’s adjusted basis for Federal income tax purposes as of such date, except that (i) the initial Book Value of a Company Asset contributed by a Member to the

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Company (including a Company Asset deemed contributed as a result of a constructive termination of the Company pursuant to Code Section 708(b)(1)(B)) shall be the Value of such Company Asset on the date of such contribution and (ii) if the Book Value of a Company Asset has been determined pursuant to clause (i) above, such Book Value shall thereafter be adjusted by the depreciation, cost recovery and amortization attributable to such Company Asset assuming that the adjusted basis of such Company Asset was equal to its Book Value determined pursuant to the methodology described in Regulation Section 1.704-1(b)(2)(iv)(g)(3).

     “ Borrower ” means any borrower or cosigner on any Education Related Loan which is owned (or is to be acquired pursuant to an existing agreement) by either (i) the Company or the Trust or (ii) Chase or any of its Affiliates.

     “ Business ” means the business of (directly or indirectly) marketing Education Related Loans and Other Approved Products and Services originated or held by Chase and its Affiliates as contemplated by this Agreement and the Venture Agreements.

     “ Business Day ” means any day (other than a Saturday, Sunday or legal holiday in the State of New York) on which banks are open for business in the State of New York.

     “ Business Plan ” means the Preliminary Business Plan, as the same may be amended or modified by a Majority in Interest of the Members, the Initial Business Plan and any other new or revised business plan which may be approved from time to time by a Majority in Interest of the Members.

     “ Business Policy ” means any policy or policies covering the business and affairs of the Company adopted from time to time by a Majority in Interest of the Members, as the same may be amended or modified from time to time by a Majority in Interest of the Members.

     “ Capital Account ” means, with respect to each Member, the account established and maintained for such Member on the books of the Company in compliance with Regulation Sections 1.704-1(b)(2)(iv) and 1.704-2, as amended. Subject to the preceding sentence, each Member’s Capital Account will initially equal the amount of cash and the Contribution Value of any property initially contributed to the Company and, throughout the term of the Company, the Capital Account of each Member will be (a) increased by (i) the amount of income and gains allocated to such Member pursuant to Article IV and (ii) any cash or the Contribution Value of any property subsequently contributed by such Member to the Company pursuant to Article III, and (b) decreased by the amount of (i) losses and deductions allocated to such Member pursuant to Article IV, and (ii) the amount of cash

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and the Distribution Value of any other Company Asset distributed to such Member by the Company.

     “ Capital Contribution ” means a contribution to the capital of the Company.

     “ Capitalized Lease Obligations ” of any Person means, as of any date as of which the amount thereof is to be determined, the amount of the liability capitalized or disclosed (or which should be capitalized or disclosed) in accordance with generally accepted accounting principles consistently applied in a balance sheet of such Person in respect of any lease of any property (whether real, personal or mixed) by that Person as lessee which would, in conformity with generally accepted accounting principles consistently applied, be required to be accounted for as a capital lease on such Person’s balance sheet.

     “ Cash Equivalents ” shall mean (a) debt securities with maturities of 180 days or less from the date of acquisition thereof which are issued or fully guaranteed or insured as to payment of principal and interest by the United States of America or any agency thereof, (b) certificates of deposit with maturities of 180 days or less from the date of acquisition thereof issued by any United States commercial bank having capital and surplus in excess of $500,000,000 and having senior debt rated A or better by Thomson BankWatch Inc. or such other rating agency as may be agreed to by a Majority in Interest of the Members; (c) commercial paper of a United States issuer rated at least either A-1 by Standard & Poor’s Corporation or P-1 by Moody’s Investors Service, Inc. with maturities of 180 days or less from the date of acquisition thereof; and (d) money market mutual funds.

     “ Certificate ” means the Certificate of Formation of the Company, as amended, modified or supplemented from time to time.

     “ Chair ” means the chair of the Board.

     “ Chase ” means The Chase Manhattan Corporation, a Delaware corporation, as constituted on the Closing Date and any successor thereto.

     “ Chase Trademarks ” means the trademarks or service marks listed on Annex A hereof.

     “ Closing Date ” means the later of (i) October 1, 1996 and (ii) the second Business Day after the first date on which all necessary Banking Approvals are received.

     “ Code ” means the Internal Revenue Code of 1986, as amended from time to time (or any succeeding law).

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     “ Commitment Lenders ” has the meaning specified in Section 13.2(b)(v).

     “ Company ” means the limited liability company formed pursuant to this Agreement under the name “Education First Marketing LLC”.

     “ Company Asset ” means any property or asset of the Company, and “ Company Assets ” means the aggregate of all of the property and assets of the Company.

     “ Contribution Value ” means the Value of property (other than cash) contributed by a Member to the Company (net of liabilities secured by such contributed property that the Company is treated as assuming or taking subject to pursuant to Section 752 of the Code).

     “ Dissolution Date ” means August 31, 2026, subject to extension as set forth in Sections 1.6 and 10.3(a).

     “ Distribution Value ” of any Company Asset distributed by the Company to any Member means the Value of such Company Asset (net of all liabilities that such Member is treated as assuming or taking subject to in connection with such distribution, pursuant to the provisions of Section 752 of the Code).

     “ Dutch Auction Closing ” has the meaning specified in Section 10.2(b).

     “ Dutch Auction Event ” means any of the following events or occurrences, if either Member notifies the other Member that such event has occurred pursuant to a written notice describing such event in reasonable detail (the “Dutch Auction Event Notice”):

    (i) any governmental or regulatory authority informs the Company or any Member that such authority or its senior staff has determined that the Company’s Business or any of a Member’s Venture Interests or a Member’s relationship to the Company violates applicable laws, rules or regulations, and any Member believes that the determination is reasonably likely to be implemented or given effect; provided , however , that the parties shall work together in good faith for a period of 60 days after delivery of the Dutch Auction Event Notice (or, if such period is not practicable under the circumstances, such shorter period as may be necessary to avoid any violation of law or official sanction) either (x) to persuade such authority or its senior staff that no such violation has occurred or (y) to restructure the transactions contemplated hereby so that the Company’s Business, the Member’s Venture Interests and the Member’s

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relationship to the Company do not violate applicable law, and no Dutch Auction Event shall be deemed to have occurred until and unless such period passes without either such result being achieved;

    (ii) there is a change in any applicable law, rule or regulation which would alter the accounting treatment or capital cost of a Member’s continued ownership of its Venture Interests in any way which would have a material adverse effect on the value of the Interest to such Member; provided , however , that the parties shall work together in good faith for a period of 60 days after delivery of the Dutch Auction Event Notice (or, if such period is not practicable under the circumstances, such shorter period as shall be practicable) to restructure the transactions contemplated hereby so that such change would not have a material adverse effect on the value of the Venture Interests to such Member, and no Dutch Auction Event shall be deemed to have occurred until and unless such period passes without such result being achieved;

    (iii) any license, permit, authorization, approval, registration, franchise or similar consent granted or issued by any governmental or regulatory authority necessary for the continuation of the Business or a material portion thereof or for a Member’s continued ownership of its Interest is revoked, terminated, canceled or suspended, and such revocation, termination, cancellation or suspension (x) cannot be cured at reasonable cost and within a reasonable period of time and (y) if not cured, would have a material adverse effect on the Company, the Business or the value to a Member of its Interest;

    (iv) any Parent or other Affiliate of either Member (“the Breaching Member ”) materially breaches any of its obligations, covenants and agreements with respect to the payment of money set forth in the Participation Agreements and shall fail to cure such breach within five days after receipt of notification thereof from the other Member (the “Non-Breaching Member”); provided , however , that the foregoing shall not constitute a Dutch Auction Event unless the Non-Breaching Member delivers a Dutch Auction Event Notice to the Breaching Member; or

    (v) Sallie Mae delivers a Dutch Auction Event Notice to TCB Sub under the circumstances described in the last sentence of Section 13.2(a).

     “ Education Related Loans ” means:

    (i) any loan authorized under the Federal Family Education Loan Program or any successor program;

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    (ii) any Health Education Assistance Loan or any loan under any successor program;

    (iii) any other loan made to individual borrowers under a public or private program which is exclusively designed, and the primary marketing focus of which is, to meet the costs of education, including vocational training but excluding primary and high school education; and

    (iv) any other loan made to individual borrowers under a public or private program, a major purpose or marketing focus of which program is to meet the costs of education, including vocational training, but only if such loan has been designated an Education Related Loan by a Majority in Interest of the Members.

     “ Event of Withdrawal ” has the meaning specified in Section 10.3.

     “ Expiration Date ” has the meaning specified in Section 13.1.

     “ Federal Family Education Loan Program ” means the program set forth in Part B of Title IV of the Higher Education Act of 1965, as amended, and any Federally-sponsored successor to such program involving privately-made, publicly guaranteed loans.

     “ Finance Company ” means the limited liability company formed pursuant to the Finance Company Agreement under the name “Education First Finance LLC”.

     “ Finance Company Agreement ” means the Limited Liability Company Agreement of Education First Finance LLC, dated as of even date herewith, between TCB Sub and Sallie Mae, as the same may be amended from time to time.

     “ Fiscal Year ” has the meaning specified in Section 7.11.

     “ Guaranty Agency ” means any Guaranty Agency approved by the Finance Company and by Sallie Mae Servicing Corporation or any other Primary Servicer.

     “ Health Education Assistance Loans ” means a loan authorized pursuant to Title VII, Part C, Subpart I of the Public Health Services Act, as amended, or any successor thereto.

     “ Initial Business Plan ” has the meaning specified in Section 7.15.

     “ Initial Employees ” means all employees of the Company

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whose employment with the Company commences on or before January 1, 1997.

     “ Interest ”, when used in reference to an interest in the Company, means the entire ownership interest of a Member in the Company at any particular time, including, without limitation, its interest in the capital, profits, losses and distributions of the Company.

     “ Investment ”, as applied to any Person, means any direct or indirect purchase or other acquisition by that Person of, or a beneficial interest of such Person in, stock or other securities of any other Person, or any direct or indirect loan, advance or capital contribution by that Person to any other Person (including all indebtedness and accounts receivable from that other Person which are not current assets or did not arise from sales to that other Person in the ordinary course of business but excluding all Education Related Loans and Other Approved Products and Services).

     “ Key Officer ” means the President and any Officer who directly reports to the President.

     “ Legal Dispute ” has the meaning specified in Section 7.16(a).

     “ Liens ” means any mortgage, pledge, assessment, security interest, lease, lien, adverse claim, levy, charge or other encumbrance of any kind, or any conditional sale contract, title retention contract or other contract to give any of the foregoing.

     “ Liquidator ” has the meaning specified in Section 10.3(b).

     “ Majority in Interest of the Members ” at any time means Members whose aggregate Percentage Interests exceed 75%.

     “ Material Contract ” means (a) any material license agreement to which the Company or any of its Subsidiaries is a party either as licensee or as licensor, (b) any of the Venture Agreements, (c) any contract which involves payments either to or by the Company or any of its Subsidiaries in excess of $50,000 in any Fiscal Year and (d) any contract with a term of more than one year.

     “ Member ” means TCB Sub and Sallie Mae and each Person admitted as a Substituted Member pursuant to Article IX, and, with respect to those provisions of this Agreement concerning a Member’s rights to receive a share of profits or other distributions or the return of a Member’s contribution, any Transferee of a Member’s Interest in the Company (except that a

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Transferee who is not admitted as a Member shall have only those rights specified by the Act and which are consistent with the terms of this Agreement).

     “ Net Income ” and “ Net Loss ”, respectively, for any period means the income and loss, respectively, of the Company for such period as determined in accordance with the method of accounting followed by the Company for Federal income tax purposes, including, for all purposes, any income exempt from tax and any expenditures of the Company which are described in Code Section 705(a)(2)(B); provided , however , that in determining Net Income and Net Loss and every item entering into the computation thereof, solely for the purpose of adjusting the Capital Accounts of the Members (and not for purposes of determining the Members’ distributive shares for tax purposes of the Company’s items of income, gain, loss and deduction), (A) any income, gain or loss attributable to the taxable disposition (including a disposition pursuant to Section 4.2(g)) of any Company Asset shall be computed as if the adjusted basis of such Company Asset on the date of such disposition equalled its Book Value as of such date, and (B) depreciation, cost recovery and amortization as to any Company Asset shall be computed by assuming that the adjusted basis of such Company Asset equalled its Book Value determined pursuant to the methodology described in Regulation Section 1.704-1(b)(2)(iv)(g)(3); and provided , further , that any item (computed as provided above and after taking into account the adjustments in the preceding proviso) allocated under Section 4.2 shall be excluded from the computation of Net Income and Net Loss.

     “ Offer Price ” has the meaning specified in Section 10.2(a).

     “ Offeree ” has the meaning specified in Section 10.2(a).

     “ Offeree’s Notice ” has the meaning specified in Section 10.2(a).

     “ Offeror ” has the meaning specified in Section 10.2(a).

     “ Offeror’s Notice ” has the meaning specified in Section 10.2(a).

     “ Officer ” means any officer of the Company appointed pursuant to Section 7.8.

     “ Other Approved Products and Services ” means the products and services described on Annex B and any other products and services designated as Other Approved Products and Services by a Majority in Interest of the Members.

     “ Parent ” of any Person means the entity which is the

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ultimate owner of all of the equity interests and all of the voting securities or other voting interests of such Person, either directly or through one or more Wholly Owned Subsidiaries.

     “ Participation Agreements ” means (i) the Master Participation Agreement dated as of the date hereof among the Trustee, the Finance Company and TCB Sub, (ii) the Master Participation Agreement dated as of the date hereof among the Trustee, the Finance Company and Sallie Mae (iii) the Interim Participation Agreement dated as of the date hereof among The Chase Manhattan Bank (the “Chase Bank”), the Finance Company and the Trustee, (iv) the Interim Participation Agreement dated as of the date hereof among Chase Manhattan Bank (USA), N.A., the Finance Company and the Trustee, (iv) the Interim Participation Agreement dated as of the date hereof among Texas Commerce Bank, National Association, the Finance Company and the Trustee, (v) the ELSC Loan Participation Agreement dated as of the date hereof among Chase Bank, the Finance Company and the Trustee, (vi) the ELSC Loan Subparticipation Agreement dated as of the date hereof among TCB Sub, the Finance Company and the Trustee and (vii) the ELSC Loan Subparticipation Agreement dated as of the date hereof among Sallie Mae, the Finance Company and the Trustee.

     “ Percentage Interest ” means, with respect to each Member, 50%.

     “ Person ” means any individual, partnership, limited liability company, association, corporation, trust or other.

     “ Policy Disagreement ” has the meaning specified in Section 7.16(a).

     “ Preliminary Business Plan ” means the current preliminary business plan for the Company, which is attached hereto as Exhibit I.

     “ President ” means the president of the Company.

     “ Presumed Tax Liability ” means, for any Member, for any Fiscal Year, an amount equal to the product of (a) the amount of the Company’s taxable income allocated to such Member for that Fiscal Year and (b) the Presumed Tax Rate.

     “ Presumed Tax Rate ” means the highest effective combined Federal, state and local income tax rate applicable during such Fiscal Year to a tax-paying corporation doing business solely in New York City, New York and taxable at the highest marginal Federal, state and local income and franchise tax rates; provided , however , that for purposes of determining the highest effective combined Federal, state and local income tax rates, each such tax rate (except the Federal rate) shall be

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multiplied by the difference between one and the highest Federal rate.

     “ Primary Servicer ” means Sallie Mae Servicing Corporation or any successor servicer providing services with respect to the Education Related Loans substantially similar to those provided by Sallie Mae Servicing Corporation under the Loan Servicing Agreement of even date herewith among the Trustee, the Company and Sallie Mae Servicing Corporation, as the same may be amended or extended from time to time.

     “ Purchaser ” has the meaning specified in Section 10.2(b).

     “ Regulation ” means a Treasury Regulation promulgated under the Code.

     “ Representative ” has the meaning specified in Section 12.1.

     “ Restricted Business ” has the meaning specified in Section 13.2(b).

     “ Restricted Company ” has the meaning specified in Section 13.2(b).

     “ Sallie Mae ” has the meaning specified in the forepart of this Agreement.

     “ Sallie Mae Trademarks ” means the trademarks or service marks listed on Annex C hereof.

     “ Secretary ” means the secretary of the Company.

     “ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

     “ Securities Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

     “ Seller ” has the meaning specified in Section 10.2(b).

     “ Senior Officers ” has the meaning specified in Section 7.16(a).

     “ Substituted Member ” means any Person admitted to the Company as a substituted Member pursuant to the provisions of Article IX.

     “ Subsidiary ” of any Person means any Person in which such first Person owns a majority of the equity interests or a

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majority of the voting securities or other voting interests, either directly or through one or more Subsidiaries.

     “ Tax Distribution ” has the meaning specified in Section 5.2.

     “ Tax Matters Partner ” shall have the meaning specified in Section 7.14.

     “ TCB Sub ” has the meaning specified in the forepart of this Agreement.

     “ Transfer ”, “ Transferee ” and “ Transferor ” have respective meanings specified in Section 9.1.

     “ Treasurer ” means the treasurer of the Company.

     “ Trust ” means the Chase/Sallie Mae Education Loan Trust established under the Trust Agreement, dated as of the date hereof, between the Company and The Chase Manhattan Bank, as Trustee.

     “ Trustee ” means The Chase Manhattan Bank, solely in its capacity as trustee of the Trust and not in its individual capacity.

     “ Value ” of any Company Asset as of any date means the fair market value of such Company Asset as of such date, as determined by a Majority in Interest of the Members (except that if there is a Liquidator, such determination shall be made by the Liquidator) upon a reasonable basis and in good faith.

     “ Venture Agreements ” means the contracts and agreements listed in Annex D hereto.

     “ Venture Interests ” of any Member at any particular time means (i) all Interests of such Member and its Affiliates in the Company, (ii) the entire ownership interest of such Member and its Affiliates in the Finance Company at such time, including, without limitation, its interest in the capital, profits, losses and distributions of the Finance Company and (iii) the entire ownership interest of such Member and its Affiliates in any loan participations issued under the Participation Agreements.

     “ Wholly Owned Subsidiary ” of any Person means any Subsidiary in which such Person owns all of the equity interests and all of the voting securities or other voting interests, either directly or through one or more Wholly Owned Subsidiaries.

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ARTICLE III

CAPITAL CONTRIBUTIONS

     Section 3.1. Initial Capital Contributions . Simultaneously with the execution of this Agreement, each of TCB Sub and Sallie Mae shall make a Capital Contribution of $50. Prior to the Closing Date, each of TCB Sub and Sallie Mae shall make the Capital Contributions in cash and property set forth opposite such Member’s name under the headings “Cash” and “Other Property” on Annex E of this Agreement. The Members agree that the value of such assets (other than cash) on the date hereof is the amount set forth under the heading “Value of Other Property” on Annex E of this Agreement. The Members agree that during the remaining term of this Agreement, each Member will make additional Capital Contributions, at the times and in the amounts requested by the Company; provided , however , that the aggregate amount of Capital Contributions by any Member to the Company, together with the aggregate amount of any capital contributions made by such Member to the Finance Company under the Finance Company Agreement shall not exceed $15,000,000 except with the written consent of each Member.

     Section 3.2. Additional Capital Contributions by the Members . Except as set forth in Section 3.1, no Capital Contributions shall be made to the Company except with the written consent of each Member.

     Section 3.3. Interest on Capital Contributions . No Member shall be entitled to interest on or with respect to any Capital Contribution.

     Section 3.4. Withdrawal and Return of Capital Contributions . Except as provided in this Agreement, no Member shall be entitled to withdraw any part of that Member’s Capital Contribution or to receive distributions from the Company.

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ARTICLE IV

ALLOCATION OF NET INCOME AND NET LOSS

     Section 4.1. Allocation of Net Income and Net Loss . The Members agree to treat the Company as a partnership and the Members as partners for Federal income tax purposes and shall file all tax returns accordingly. The Company and each Member shall refrain from filing with the Internal Revenue Service (the “IRS”) any election for the Company to be treated as an association taxable as a corporation, and shall file with the IRS any election permitted under final Regulations for the Company to be treated as a partnership for Federal income tax purposes. Except as provided in Section 4.2, the Company’s Net Income or Net Loss, as the case may be, and each item of income, gain, loss and deduction entering into the computation thereof, for each Fiscal Year shall be allocated to the Members in accordance with their respective Percentage Interests; provided , that upon the sale of all or substantially all Company Assets or upon the liquidation of the Company, items of income, gain, deduction and loss shall first be allocated to the Members so as to cause, to the extent possible, the Members’ Capital Account balances to be proportionate to the Members’ respective Percentage Interests and then in accordance with the Members’ respective Percentage Interests.

     Section 4.2. Other Allocation Provisions .

     (a) If there is a net decrease in “partnership minimum gain” (within the meaning of Regulation Section 1.704-2(d)) for a Fiscal Year, then there shall be allocated to each Member items of income and gain for that Fiscal Year equal to that Member’s share of the net decrease in partnership minimum gain (within the meaning of Regulation Section 1.704-2(g)(2)), subject to the exceptions set forth in Regulation Section 1.704-2(f)(2), (3), and (5), provided , that if the Company has any discretion as to an exception set forth pursuant to Regulation Section 1.704-2(f)(5), the Tax Matters Partner may exercise such discretion on behalf of the Company. The Tax Matters Partner shall, if the application of the minimum gain chargeback requirement would cause a distortion in the economic arrangement among the Members, ask the Commissioner to waive the minimum gain chargeback requirement pursuant to Regulation Section 1.704-2(f)(4). The foregoing is intended to be a “minimum gain chargeback” provision as described in Regulation Section 1.704-2(f) and shall be interpreted and applied in all respects in accordance with that Regulation.

     If during a Fiscal Year there is a net decrease in partner nonrecourse debt minimum gain (as determined in accordance with Regulation Section 1.704-2(i)(3)), then, in addition to the amounts, if any, allocated pursuant to the

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preceding paragraph, any Member with a share of that partner nonrecourse debt minimum gain (determined in accordance with Regulation Section 1.704-2(i)(5)) as of the beginning of the Fiscal Year shall, subject to exceptions set forth in Regulation Section 1.704-2(i)(4) ( provided , that if the Company has any discretion as to an exception set forth by reference to Regulation Section 1.704-2(f)(5), the Tax Matters Partner may exercise such discretion on behalf of the Company), be allocated items of income and gain for the year (and, if necessary, for succeeding years) equal to that Member’s share of the net decrease in the partner nonrecourse minimum gain. The Tax Matters Partner shall, if the application of the partner nonrecourse debt minimum gain chargeback requirement would cause a distortion in the economic arrangement among the Members, ask the Commissioner to waive the minimum gain chargeback requirement pursuant to Regulation Sections 1.704-2(f)(4) and 1.704-2(i)(4). The foregoing is intended to be the “chargeback of partner nonrecourse debt minimum gain” required by Regulation Section 1.704-2(i)(4) and shall be interpreted and applied in all respects in accordance with that Regulation.

     (b) If during any Fiscal Year of the Company a Member unexpectedly receives an adjustment, allocation or
distribution described in Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), which causes or increases a deficit balance in the Member’s Adjusted Capital Account, there shall be allocated to the Member items of income and gain (consisting of a pro rata portion of each item of Company income, including gross income, and gain for such year) in an amount and manner sufficient to eliminate such deficit as quickly as possible. The foregoing is intended to be a “qualified income offset” provision as described in Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted and applied in all respects in accordance with that Regulation.

     (c) If any Member has a deficit in its Adjusted Capital Account, such Member shall be specially allocated items of Company income and gain in the amount of such deficit as rapidly as possible, provided that an allocation pursuant to this Section 4.2(c) shall be made if and only to the extent that such Member would have a deficit in its Adjusted Capital Account after all other allocations provided for in this Agreement have been tentatively made as if this Section 4.2(c) were not in this Agreement.

     (d) Notwithstanding anything to the contrary in this Article IV:

    (i) Company losses, deductions, or Code Section 705(a)(2)(B) expenditures that are attributable to a particular partner nonrecourse liability shall be allocated to the Member that bears the economic risk of loss for the

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liability in accordance with the rules of Regulation Section 1.704-2(i); and

    (ii) Company losses, deductions, or Code Section 705(a)(2)(B) expenditures that are attributable to the Company’s partnership nonrecourse liabilities shall be allocated to the Members in accordance with their Percentage Interests.

     (e) Notwithstanding any provision of Section 4.1 no allocation of Net Losses shall be made to a Member if it would cause the Member to have a negative balance in its Adjusted Capital Account. Allocations of Net Losses that would be made to a Member but for this Section 4.2(e) shall instead be made to other Members pursuant to Section 4.1 to the extent not inconsistent with this Section 4.2(e). To the extent allocations of Net Losses cannot be made to any Member because of this Section 4.2(e), such allocations shall be made to the Members in accordance with Section 4.1 notwithstanding this Section 4.2(e).

     (f) To the extent that any item of income, gain, loss or deduction has been specially allocated pursuant to paragraphs (b), (c) or (e) of this Section 4.2 and such allocation is inconsistent with the way in which the same amount otherwise would have been allocated under Section 4.1, subsequent allocations under Section 4.1 shall be made, to the extent possible and without duplication, in a manner consistent with paragraphs (a), (b), (c) and (e) which negate as rapidly as possible the effect of all such inconsistent allocations under said paragraphs (b), (c) and (e).

     (g) Solely for the purpose of adjusting the Capital Accounts of the Members, and not for purposes of determining the Members’ distributive shares for tax purposes of the Company’s items of income, gain, loss and deduction, if any property is distributed in kind to any Member, the difference between its Value and its Book Value at the time of distribution shall be treated as gain or loss recognized by the Company and allocated pursuant to the provisions of Section 4.1.

     (h) In determining the Members’ share of the excess nonrecourse liabilities of the Company, if any, for purposes of Regulation Section 1.752-3(a)(3), the Members’ share of Company profits shall be proportional to the Members’ Percentage Interests.

     (i) Except to the extent otherwise required by the Code and Regulations, if an Interest in the Company is transferred in whole or in part in any Fiscal Year, the items of income, gain, loss, deduction and credit allocable to such Interest for such Fiscal Year shall be apportioned between the transferor and the transferee in proportion to the number of days

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in such Fiscal Year the Interest is held by each of them, except that, if they agree between themselves and so notify the Tax Matters Partner within thirty days after such transfer, then at their option and expense, (i) all items or (ii) extraordinary items, including capital gains and losses, may be allocated to the Person who held the Interest on the date such items were realized or incurred by the Company.

     (j) Any allocations made pursuant to this Article IV shall be made in the following order: (i) Section 4.2(a), (ii) Section 4.2(b), (iii) Section 4.2(d), (iv) Section 4.2(f), (v) Section 4.2(i), (vi) Section 4.1 and (vii) Section 4.2(c). These provisions shall be applied as if all distributions and allocations were made at the end of the Fiscal Year. Where any provision depends on the Capital Account of any Member, that Capital Account shall be determined after the operation of all preceding provisions for the year. These allocations shall be made consistently with the requirements of Regulation Section 1.704-2(j).

     (k) If, for any taxable period of the Company, the Company is deemed to have a net increase (or decrease) in income for tax purposes as a result of a redetermination by a tax authority resulting from transactions between the Company and any Member or any Affiliate of any Member, the item or items of income or gain (or loss or deduction) that resulted in such increase (or decrease) in income shall be allocated to the Member that was (or the Affiliate of which was) a party to the transaction and the Capital Accounts of the Members shall reflect such allocations.

     Section 4.3. Allocations for Income Tax Purposes . (a) The income, gains, losses, deductions and credits of the Company for Federal, state and local income tax purposes shall be allocated in the same manner as the corresponding items entering into the computation of Net Income and Net Losses were allocated pursuant to Sections 4.1 and 4.2; provided that solely for Federal, local and state income and franchise tax purposes and not for book or Capital Account purposes, income, gain, loss and deduction with respect to property the Book Value of which differs from its tax basis shall be allocated in accordance with the requirements of Code Section 704(c) using the “traditional method with curative allocations” of Regulation Section 1.704-3(c).

     Section 4.4. Withholding . The Company shall comply with withholding requirements under Federal, state and local law and shall remit amounts withheld to and file required forms with the applicable jurisdictions. To the extent the Company is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Member, the amount withheld shall be deemed to be a distribution to that

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Member in the amount of the withholding. In the event of any claimed over-withholding, Members shall be limited to an action against the applicable jurisdiction. If the amount withheld was not withheld from actual distributions, the Company may, at its option, (a) require the Member to reimburse the Company for such withholding or (b) reduce any subsequent distributions by the amount of such withholding. Each Member agrees to furnish the Company with any representations and forms that shall reasonably be requested by the Company to assist it in determining the extent of, and in fulfilling, its withholding obligations.

ARTICLE V

DISTRIBUTIONS

     Section 5.1. Distributions . Except as provided in Section 5.2 and Section 5.3, any distributions of cash or of property other than cash to any Member shall be made only upon the written agreement of a Majority in Interest of the Members with respect to the amount, the manner (including, without limitation, the determination of whether cash and/or property shall be distributed by the Company and to which Member(s) such distributions shall be made) and the timing of such distributions.

     Section 5.2. Tax Distributions . Five days prior to the due date for the payment by a calendar year corporation of each quarterly installment of estimated Federal income tax with respect to any Fiscal Year, the Company shall distribute to the Members, in proportion to their Percentage Interests, an amount (a “Tax Distribution”) such that aggregate Tax Distributions with respect to such quarter and all prior quarters of such Fiscal Year shall equal, (i) with respect to the first quarter of the Fiscal Year, 25%, (ii) with respect to the second quarter of the Fiscal Year, 50%, (iii) with respect to the third quarter of the Fiscal Year, 75% and (iv) with respect to the fourth quarter of the Fiscal Year, 100% of the estimated aggregate Presumed Tax Liabilities of all Members for such Fiscal Year. Upon the Company’s filing of its Federal, state and local income or franchise tax returns for any Fiscal Year, the Company shall compute the aggregate Presumed Tax Liabilities of all Members for such Fiscal Year. If the aggregate Presumed Tax Liabilities for the Fiscal Year exceeds the amount distributed to the Members pursuant to this Section 5.2 with respect to such Fiscal Year, the Company shall distribute any excess to the Members, in proportion to their Percentage Interests, within five days of the Company’s filing of such tax returns. With the approval of a Majority in Interest of the Members, the Company may reduce the amount distributable in any Fiscal Year pursuant to this Section 5.2 by all amounts distributed to the Members during such Fiscal Year pursuant to Sections 5.1 and 5.3.

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     Section 5.3. Periodic Mandatory Distributions . From and after the fiscal quarter beginning October 1, 1997, the Company shall, at least once in each fiscal quarter, distribute to the Members, in proportion to their Percentage Interests, all of the cash and Cash Equivalents held by the Company in excess of the amount needed by the Company to meet its anticipated operating expenses and capital expenditures, including appropriate reserves for future liabilities, as determined by a Majority in Interest of the Members; provided , however , that no such distribution shall be required unless the Company’s equity capital, determined in accordance with generally accepted accounting principles consistently applied, shall exceed 0.5% (or such other percentage as may be determined in accordance with the Business Plan then in effect) of the Company’s total assets as of the end of the preceding fiscal quarter.

ARTICLE VI

POWERS, RIGHTS AND DUTIES
OF THE MEMBERS

     Section 6.1. Powers and Duties . Except as otherwise set forth in this Agreement, the Company shall act by a Majority in Interest of the Members, and the Members, acting by a Majority in Interest of the Members, shall have exclusive and complete authority, discretion, right and power to manage the operations and affairs of the Company, to make all decisions regarding the business of the Company, to do any and all other acts and things necessary, proper, convenient or advisable to effectuate the purposes of this Agreement and to act for or bind the Company; provided , however , that no Member acting alone who does not hold a Majority in Interest of the Members may bind the Company; and provided further that the Members may act through the Representatives as set forth in Section 12.1. Persons dealing with the Company are entitled to rely conclusively on the power and authority of the Members as set forth in this Agreement.

     Section 6.2. Limitations . Notwithstanding anything in this Agreement to the contrary, no Member shall, without the written consent or ratification of the specific act by all Members given in this Agreement or by other written instrument executed and delivered by all Members subsequent to the date of this Agreement, cause or permit the Company to

     (a) do or perform any act, or cause any act to be done or performed, which would make it impossible to carry on the ordinary business of the Company;

     (b) possess Company property, or sell, lease, assign, pledge, transfer or otherwise dispose of Company

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property, for other than a Company purpose;

     (c) admit a Person as a Member;

     (d) do or perform any act, or cause any act to be done or performed, that would subject any Member to liability as a general partner in any jurisdiction; or

     (e) do or perform any act, or cause any act to be done or performed, which would result in another Member’s violating any applicable law, rule or regulation or any applicable license, permit, approval, registration, franchise or similar consent granted by any governmental or regulatory authority.

     Section 6.3. Transactions with Affiliates .

     (a) The Company shall not enter into, amend, modify or subject to waiver any transaction or contract, or series of related transactions and contracts, with any Member or any Affiliate of any Member, except with the approval of a Majority in Interest of the Members; provided , however , that, without the approval of a Majority in Interest of the Members, the Company may enter into the Venture Agreements and the transactions expressly contemplated thereby (but may not amend, modify, subject to material waiver or make any material election of rights or remedies under the Venture Agreements without the approval of a Majority in Interest of the Members); and provided further that, without the approval of a Majority in Interest of the Members, the Company may enter into, amend, modify or subject to waiver any transaction or contract or series of related transactions and contracts which (A) relates to less than $50,000 in the aggregate, (B) is to be fully performed within an aggregate term of one year or less and (C) is on terms which are commercially reasonable and are no less favorable to the Company than could have been obtained through arms’-length negotiations with an unaffiliated third party. Nothing herein contained shall be construed as a guarantee of the performance by any Member or its Affiliates of its obligations under any contract between any such Member or Affiliate and the Company.

     (b) No Member and no Affiliate of any Member shall receive any compensation from the Company, except (i) as otherwise permitted in this Agreement and the Venture Agreements (including pursuant to a transaction, contract or series of transactions and contracts permitted by Section 6.3(a)) and (ii) the Members’ interest in distributions, capital, profits, income, gain, loss, deduction and credit of the Company.

     Section 6.4. Nature and Validity of Transactions with Members and Affiliates . Subject to the provisions of Section 6.3, any Member or any Affiliate of a Member may be

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employed or retained by the Company or any Affiliate of the Company in any capacity. The validity of any transaction, agreement or payment involving the Company and the Members or any of their respective Affiliates otherwise permitted by this Agreement shall not be affected by reason of the relationship between the Members and such Affiliate or the approval of such transaction, agreement or payment by the Members.

     Section 6.5. Exculpation . No Member shall be personally liable for the return of any portion of the Capital Contributions (or any return thereon) of the Members. The return of such Capital Contributions (or any return thereon) shall be made solely from the Company Assets. No Member shall be required to pay to the Company or to any Member any deficit in the Capital Account of any Member upon dissolution of the Company or otherwise. No Member shall have the right to demand or receive property other than cash for its Interest in the Company. Neither the Members, the Officers nor any of their respective Affiliates, shall be liable, responsible or accountable in damages or otherwise to the Company or any Member for any action taken or failure to act on behalf of the Company that the Person taking or failing to take such action reasonably believed to be within the scope of the authority conferred on the Members or such Officers by this Agreement, by the instrument electing such Officers or by law unless such act or omission was performed or omitted in bad faith or constituted gross negligence or willful misconduct.

     Section 6.6. Expenses . The Company shall be responsible for and shall pay all expenses incurred in connection with the operation of the Company’s Business. Each Member shall be entitled to receive out of Company funds reimbursement of all expenses incurred by such Member or any of its Affiliates on the Company’s behalf in connection with the operation of the Company’s Business; provided , however , that the aggregate of all such reimbursements in any Fiscal Year shall not exceed $50,000 without the approval of a Majority in Interest of the Members.

     Section 6.7. Indemnification of Members . The Company shall indemnify and hold harmless each Member and the Affiliates of each Member (and their respective officers, agents and employees) from and against any claim, loss, expense, damage or injury suffered or sustained by them, by reason of any acts, omissions or alleged acts or omissions arising out of or in connection with the Company or this Agreement, including, without limitation, any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, except that the Company shall not be responsible under this Section 6.7 to an indemnified party for any claim, loss, expense, damage or injury that has resulted solely from such indemnified party’s bad faith, willful

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misconduct or gross negligence.

ARTICLE VII

OFFICERS, EMPLOYEES AND AGENTS OF THE COMPANY

     Section 7.1. Delegation of Authority . Pursuant to the provisions of Section 18-407 of the Act, the Members hereby delegate to the Officers the authority, right and power, in the management of the Company’s Business to do any and all acts and things necessary, proper, convenient or advisable to effectuate the purposes of this Agreement, including, by way of illustration but not by way of limitation, the following powers (but subject in all cases to the limitations set forth below in the provisos to this Section 7.1):

     (a) to conduct the Company’s Business;

     (b) to acquire, hold, sell, lease, transfer, assign, exchange, pledge, dispose of and otherwise deal with all or any part of the Company Assets, and incident thereto, to liquidate Company Assets at any time during the term of the Company and to reinvest the proceeds thereof;

     (c) to enter into, amend, renew, extend or otherwise modify any financing or refinancing arrangements relating to the Business of the Company, and, incident thereto, to pledge or otherwise encumber all or any part of the Company Assets as margin or other collateral for such financing and refinancing arrangements;

     (d) to do such other acts as the Officers may deem necessary or advisable, or as may be incidental to or necessary for the conduct of the business of the Company, including, without limitation, to enter into, make and perform agreements, undertakings and transactions with any Officer, any Member or any shareholder, direct or indirect partner, member, Affiliate or employee of any Officer or Member, or with any other Person having any business, financial or other relationship with any Officer, any Member or any direct or indirect partner, member, Affiliate or employee of any Officer or Member;

     (e) to engage independent legal counsel or other experts (other than the Accountants) selected by the Officers on behalf of the Company as the Officers may deem necessary or advisable and for such compensation as the Officers may determine;

 &n