LIMITED LIABILITY COMPANY AGREEMENT OF CIT GROUP (NJ) LLC
Exhibit T3B.19
OF
CIT GROUP (NJ) LLC
This Limited Liability Company Agreement (together with the schedules attached hereto, this
“Agreement”) of CIT Group (NJ) LLC (the “Company”), is entered into by CIT Group Inc. (NJ), a New
Jersey corporation, as the sole member (the “Initial Member”). Capitalized terms used herein and
not otherwise defined have the meanings set forth on Schedule A hereto.
The Initial Member, by execution of this Agreement, (i) hereby forms and continues the Company
as a limited liability company pursuant to and in accordance with the Delaware Limited Liability
Company Act (6 Del.C. §18-101, et seq.), as amended from time to time (the “Act”), and
(ii) hereby agrees as follows:
1. Name.
The name of the limited liability company heretofore formed and continued hereby is CIT Group
(NJ) LLC.
2. Principal Business Office.
The principal business office of the Company shall be located at 0 XXX Xxxxx, Xxxxxxxxxx, XX
00000 or such other location as may hereafter be determined by the Member.
3. Registered Office.
The address of the registered office of the Company in the State of Delaware is c/o The
Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000.
4. Registered Agent.
The name and address of the registered agent of the Company for service of process on the
Company in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
5. Members.
The name and the mailing address of the Initial Member(s) are set forth on Schedule B
attached hereto.
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6. Certificates.
Xxxx X. Xxxxxxxxxx, as an “authorized person” within the meaning of the Act, shall execute,
deliver and file the Certificate of Formation with the Secretary of State of the State of Delaware.
Upon the filing of the Certificate of Formation with the Secretary of State of the State of
Delaware, his powers as an “authorized person” shall cease, and the Member thereupon became the
designated “authorized person” and shall continue as the designated “authorized person” within the
meaning of the Act. The Member or any of its officers shall execute, deliver and file any other
certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify
to do business in any other jurisdiction in which the Company may wish to conduct business.
7. Purposes.
The Company is formed for the object and purpose of, and the nature of the business to be
conducted and promoted by the Company is, engaging in any lawful act or activity for which limited
liability companies may be formed under the Act.
8. Powers.
The Company (i) shall have and exercise all powers necessary, convenient or incidental to
accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to the Act.
9. Management. The Company shall be managed by its Member(s) through a
Member-appointed Board of Directors.
a. Board of Directors. The business and affairs of the Company shall
be managed by or under the direction of a Board of one or more Directors. The Member(s) may
determine at any time in its sole and absolute discretion the number of Directors to constitute the
Board. The authorized number of Directors may be increased or decreased by the Member(s) at any
time in its sole and absolute discretion. The initial number of Directors shall be three. The
initial Directors are listed on Schedule C hereto. Each Director elected, designated or appointed
shall hold office until a successor is elected and qualified or until such Director’s earlier
death, resignation or removal. Each Director shall execute and deliver the Management Agreement.
Directors need not be Members.
(1) Powers. The Board of Directors shall have the power to do any and all acts
necessary, convenient or incidental to or for the furtherance of the purposes described herein,
including all powers, statutory or otherwise. The Board of Directors has the authority to bind the
Company.
(2) Meeting of the Board of Directors. The Board of Directors of the Company may hold
meetings, both regular and special, within or outside the State of Delaware. Regular meetings of
the Board may be held without notice at such time and at such place as shall from time to time be
determined by the Board. Special meetings of the
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Board may be called by the President on not less than one day’s notice to each Director by
telephone, facsimile, mail, telegram or any other means of communication, and special meetings
shall be called by the President or Secretary in like manner and with like notice upon the written
request of any one or more of the Directors.
(3) Quorum; Acts of the Board. At all meetings of the Board, a majority of the
Directors shall constitute a quorum for the transaction of business and, except as otherwise
provided in any other provision of this Agreement, the act of a majority of the Directors present
at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be
present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until a quorum shall be
present. Any action required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
(4) Electronic Communications. Members of the Board, or any committee designated by
the Board, may participate in meetings of the Board, or any committee, by means of telephone
conference or similar communications equipment that allows all persons participating in the meeting
to hear each other, and such participation in a meeting shall constitute presence in person at the
meeting. If all the participants are participating by telephone conference or similar
communications equipment, the meeting shall be deemed to be held at the principal place of business
of the Company.
(5) Committees of Directors.
(i) The Board may, by resolution passed by a majority of the whole Board, designate one
or more committees, each committee to consist of one or more of the Directors of the Company. The
Board may designate one or more Directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee.
(ii) In the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether or not such
members constitute a quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member.
(iii) Any such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board in the management of the business
and affairs of the Company. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board. Each committee shall keep regular
minutes of its meetings and report the same to the Board when required.
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(6) Written Consent of Directors. Whenever, by provision of statute or of the
Certificate of Formation or by this Limited Liability Company Agreement, the vote of the Board of
Directors or any committee thereof is required or permitted to be taken at a meeting thereof in
connection with any action, the meeting and the vote of the Board of Directors or any committee
thereof may be dispensed with if all of the members of the Board of Directors or the committee
consent in writing to the adoption of a resolution authorizing the action. The resolution and the
written consent thereto by the members of the Board of Directors or the committee shall be filed
with the minutes of the proceedings of the Board of Directors or committee.
(7) Removal of Directors. Unless otherwise restricted by law, any Director or the
entire Board of Directors may be removed, with or without cause, by majority vote of the Member(s),
and, any vacancy caused by any such removal may be filled by majority vote of the Member(s).
(8) Directors as Agents. To the extent of their powers set forth in this Agreement,
the Directors are agents of the Company for the purpose of the Company’s business, and the actions
of the Directors taken in accordance with such powers set forth in this Agreement shall bind the
Company.
(9) Duties of Directors. Except as provided in this Agreement, in exercising their
rights and performing their duties under this Agreement, the Directors shall have a fiduciary duty
of loyalty and care similar to that of a director of a business corporation organized under the
General Corporation Law of the State of Delaware.
b. Officers.
(1) Offices, Election, Term.
(i) The Board of Directors may elect or appoint a Chief Executive Officer, a President, one or
more Vice Presidents, a Secretary, a Treasurer, and a Controller, and such other officers as it may
determine, who shall have such duties, powers and functions as hereinafter provided. The Chairman
of the Board, the President or the Chief Executive Officer together with the Secretary of the
Company may appoint any such other officers or agents, other than a Chief Executive Officer,
President or Secretary, fix their term of office, and prescribe their respective authorities and
duties. Any two or more offices may be held by the same person.
(ii) All officers shall be elected or appointed to hold office until the meeting of the Board
of Directors immediately following the Annual Meeting of Members.
(iii) Each officer shall hold office for the term for which he is elected or appointed and
until his successor has been elected or appointed and qualified or until his earlier resignation
or removal.
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(iv) The Directors may require any officer to give security for the faithful performance of
his duties.
(v) The Board of Directors may appoint such other officers and agents as it may deem
advisable, who shall hold their offices for such term and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors.
(2) Removal and Resignation.
(i) Any officer elected or appointed by the Board of Directors may be removed by the Board at
any time, with or without cause.
(ii) Any officer elected or appointed by the Chairman of the Board, the Chief Executive
Officer or the President together with the Secretary of the Company may be removed by said officers
and/or the Board of Directors at any time, with or without cause.
(iii) If, for any reason, any elected or appointed officer of the Company ceases to be
employed by CIT Group Inc. or any of its affiliates, such cessation of employment shall have the
same effect as if such individual resigned as an officer of the Company. Under such circumstances,
the Board of Directors shall not require the resigning officer to deliver a signed resignation, but
instead, based on information received from the Human Resources Department of CIT Group Inc. or any
of its affiliates, the Secretary or any Assistant Secretary of the Company shall file with the
minutes of the meetings of the Company a notice of the officer’s cessation of employment and
consequent resignation as an officer of the Company.
(iv) In the event of the death, resignation or removal of an officer, the Board of Directors,
in its discretion, may elect or appoint a successor to fill the unexpired term.
(v) The Board of Directors may fill any vacancy occurring in any office for any reason and
may, in its discretion, leave unfilled for such period as it may determine any offices other than
those of President, Treasurer and Secretary. Each such successor shall hold office for the
unexpired term of his predecessor and until his successor is elected and qualified, or until his
earlier death, resignation or removal.
(3) The Chief Executive Officer. The Chief Executive Officer shall: (i) oversee the
overall business and management of the Company; (ii) report to the Members on the business and
affairs of the Company; and (iii) perform such duties as from time to time may be assigned to him
by the Board of Directors.
(4) The President. The President shall: (i) preside at all meetings of the Board of
Directors, provided that the President is a member of the Board of Directors; (ii) be controlled
by the Chief Executive Officer and the Board of Directors
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of the Company and shall make reports concerning the business and affairs of the Company to the
Chief Executive Officer and the Board of Directors as requested; (iii) have the general powers and
duties of supervision, management, direction and control of the business of the Company usually
vested in the office of President of a business corporation formed under the Delaware General
Corporation Law, including, without limitation, the authority to sign or countersign all
certificates, contracts, or other instruments of the Company as authorized by the Board of
Directors. The officers of the Company shall be responsible to the President for the proper and
faithful discharge of their several duties, and shall each report to him as he may from time to
time require.
(5) The Vice Presidents. The title of Vice President may be
preceded by the words “Executive”, “Senior”, or “Assistant” to indicate the rank of such
Vice President, set forth above in the order of rank with “Executive” being the highest rank
of Vice President. The term Vice President(s) as used in this Agreement shall include all
ranks of Vice President.
(i) The Vice Presidents shall possess the power to sign all certificates, contracts,
obligations and other instruments to which the Company is a party and such execution by any one of
the Vice Presidents shall be legal, valid, and binding upon the Company. During the absence or
disability of the President, the Vice President or, if there are more than one, the Vice
Presidents in the order of (i) rank, (ii) election, or (iii) as determined by the board of
directors, shall have all of the powers and functions of the President. Each Vice President shall
perform such other duties as the President may delegate or as the Board of Directors shall
prescribe.
(6) The Secretary. The Secretary shall: (i) keep the minutes of all meetings of the
Board of Directors and of the Members and cause the same to be recorded in the books provided for
that purpose; (ii) give or cause to be given notice of all meetings of Members and of special
meetings of the Board of Directors; (iii) keep all the documents and records of the Company, as
required by law or otherwise, in the proper and safe manner; and (iv) perform all such other
duties as may be incident to the office of Secretary and perform all such other duties as may be
prescribed by the President or the Board of Directors.
(7) The Assistant Secretary. During the absence or disability of the Secretary, the
Assistant Secretary or, if there be more than one, the one so designated by the Secretary, the
President or the Board of Directors, shall have all the powers and functions of the Secretary. The
Assistant Secretary shall perform all such other duties as may be prescribed by the Secretary, the
President, or the Board of Directors.
(8) The Treasurer. The Treasurer shall: (i) have the custody of the company funds and
securities; (ii) keep full and accurate accounts of receipts and disbursements in the company
books; (iii) deposit all money and other valuables in the name and to the credit of the Company in
such depositories as may be designated by the Board of Directors; (iv) disburse the funds of the
Company as may be ordered or authorized by the Board of Directors and preserve proper vouchers for
such disbursements; (v) render to the President and the Board of Directors, at the regular meetings
of the Board
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of Directors, or whenever they require it, an account of all his transactions as Treasurer and of
the financial condition of the Company; (vi) render a full financial report at the Annual Meeting
of the Members, if so requested; (vii) be furnished by all corporate officers and agents, at his
request, with such reports and statements as he may require as to all financial transactions of
the Company; and (viii) perform such other duties as are given to him by this Agreement or from
time to time, are assigned to him by the Board of Directors or the President.
(9) The Assistant Treasurer. During the absence or disability of the Treasurer, the
Assistant Treasurer, or, if there be more than one, the one so designated by the Treasurer, the
President or the Board of Directors, shall have all the powers and functions of the Treasurer. The
Assistant Treasurer shall perform all such other duties as may be prescribed by the Treasurer, the
President, or the Board of Directors.
(10) The Controller. The Controller shall examine and certify the accounts of the
Company and shall report to the Board of Directors or to such officer as the Board of Directors
may require.
(11) The Assistant Controller. During the absence or disability of the Controller, the
Assistant Controller, or, if there be more than one, the one so designated by the Controller, the
President or the Board of Directors, shall have all the powers and functions of the Controller. The
Assistant Controller shall perform all such other duties as may be prescribed by the Treasurer, the
President, or the Board of Directors.
(12) Delegation of Duties. In the case of the absence of any officer of the Company,
or for any other reason that the Board of Directors deems sufficient, the Board of Directors may
delegate, for any designated period of time, the powers or duties, or any of these, of such
officer to any other officer, or to any Director, provided that one person is not given the powers
and duties of both the President and Secretary.
(13) Shares of Other Corporations. Whenever the Company is the holder of shares of
any other business entity, any right or power of the Company as such stockholder (including the
attendance, acting and voting at Stockholders’ meetings and execution of waivers, consents,
proxies or other instruments) may be exercised on behalf of the Company by the President, any Vice
President, or such other person as the Board of Directors may authorize.
(14) Forms of Signature. Acceptable forms of signature under which the officers may
bind the Company are by hand, autographically, by facsimile or by uniquely marked,
computer-generated signatures or by other electronic methods.
(15) Officers as Agents. The Officers, to the extent of their powers set forth in this
Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement,
are agents of the Company for the purpose of the
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Company’s business, and, the actions of the Officers taken in accordance with such powers shall
bind the Company.
(16) Duties of Officers. Except to the extent otherwise provided herein, each
Officer shall have a fiduciary duty of loyalty and care similar to that of officers of business
corporations organized under the General Corporation Law of the State of Delaware.
10. Limited Liability.
Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of
the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and
liabilities solely of the Company, and neither any Member nor any Director shall be obligated
personally for any such debt, obligation or liability of the Company solely by reason of being a
Member, Director or Officer of the Company.
11. Capital Contributions.
The Initial Member was deemed admitted as the Member of the Company upon the execution and
delivery of the Initial LLC Agreement. The Initial Member shall contribute the amount of cash to
the Company listed on Schedule B attached hereto.
12. Additional Contributions.
The Initial Member is not required to make any additional capital contribution to the Company.
However, a Member may make additional capital contributions to the Company at any time upon the
written consent of such Member. To the extent that the Member makes an additional capital
contribution to the Company, the Member shall revise Schedule B of this Agreement. The
provisions of this Agreement, including this Section 14, are intended solely to benefit the Member
and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon
any creditor of the Company (and no such creditor of the Company shall be a third-party beneficiary
of this Agreement) and no Member shall have any duty or obligation to any creditor of the Company
to make any contribution to the Company or to issue any call for capital pursuant to this
Agreement.
13. Allocation of Profits and Losses.
The Company’s profits and losses shall be allocated to the Member.
14. Distributions.
Distributions shall be made to the Member at the times and in the aggregate amounts determined
by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the
Company shall not be required to make a distribution to any Member on account of its interest in
the Company if such distribution would violate Section 18-607 of the Act or any other applicable
law or the Basic Documents.
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15. Books and Records.
The Board shall keep or cause to be kept complete and accurate books of account and records
with respect to the Company’s business. The books of the Company shall at all times be maintained
by the Board. Each Member and its duly authorized representatives shall have the right to examine
the Company books, records and documents during normal business hours. The Company, and the Board
on behalf of the Company, shall not have the right to keep confidential from the Member any
information that the Board would otherwise be permitted to keep confidential from the Member
pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the
method of accounting determined by the Member. The Company’s independent auditor shall be an
independent public accounting firm selected by the Member.
16. Exculpation and Indemnification.
a. No Member, Officer, Director, employee or agent of the Company
and no employee, representative, agent or Affiliate of the Member (collectively, the
“Covered Persons”) shall be liable to the Company or any other Person who has an interest
in or claim against the Company for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by such Covered Person in good faith on behalf of
the Company and in a manner reasonably believed to be within the scope of the authority
conferred on such Covered Person by this Agreement, except that a Covered Person shall
be liable for any such loss, damage or claim incurred by reason of such Covered Person’s
gross negligence or willful misconduct.
b. To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss, damage or claim
incurred by such Covered Person by reason of any act or omission performed or omitted by
such Covered Person in good faith on behalf of the Company and in a manner reasonably
believed to be within the scope of the authority conferred on such Covered Person by this
Agreement, except that no Covered Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Covered Person by reason of such Covered
Person’s gross negligence or willful misconduct with respect to such acts or omissions;
provided, however, that any indemnity under this Section 16 shall be provided
out of and
to the extent of Company assets only, and no Member shall have personal liability on
account thereof.
c. To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any claim, demand, action,
suit or proceeding shall, from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by the Company
of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be
determined that the Covered Person is not entitled to be indemnified as authorized in this
Section 16.
d. A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered Person
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reasonably believes are within such other Person’s professional or expert competence and who has
been selected with reasonable care by or on behalf of the Company, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities, or any other facts
pertinent to the existence and amount of assets from which distributions to the Member might
properly be paid.
e. To the extent that, at law or in equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating thereto to the Company or to any other
Covered Person, a Covered Person acting under this Agreement shall not be liable to the
Company or to any other Covered Person for its good faith reliance on the provisions of
this Agreement or any approval or authorization granted by the Company or any other
Covered Person. The provisions of this Agreement, to the extent that they restrict the
duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed
by the Member to replace such other duties and liabilities of such Covered Person.
f. The foregoing provisions of this Section 16 shall survive any
termination of this Agreement.
17. Assignments.
The Member may assign in whole or in part its limited liability company interest in the
Company. If the Member transfers all of its limited liability company interest in the Company
pursuant to this Section 17, the transferee shall be admitted to the Company as a member of the
Company upon its execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature page to this
Agreement. Such admission shall be deemed effective immediately prior to the transfer, and,
immediately following such admission, the transferor Member shall cease to be a member of the
Company.
18. Resignation.
A Member may resign from the Company with the written consent of the Initial Member. If a
Member is permitted to resign pursuant to this Section 18, an additional member of the Company
shall be admitted to the Company, subject to Section 19, upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of this Agreement, which
instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the resignation, and, immediately following such admission, the
resigning Member shall cease to be a member of the Company.
19. Admission of Additional Members.
One or more additional members of the Company may be admitted to the Company with the written
consent of the Member.
20. Dissolution.
a. The Company shall be dissolved, and its affairs shall be wound up
upon the first to occur of the following: (i) the retirement, resignation or dissolution of the
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Member or the occurrence of any other event which terminates the continued membership of the Member
in the Company unless the business of the Company is continued in a manner permitted by the Act or
(ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act.
b. The bankruptcy (as defined in Section 18-101(1) of the Act) of the
Member shall not cause the Member to cease to be a member of the Company and upon
the occurrence of such an event, the business of the Company shall continue without
dissolution.
c. In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the assets of the
Company in an orderly manner), and the assets of the Company shall be applied in the
manner, and in the order of priority, set forth in Section 18-804 of the Act.
21. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by
law, each Member hereby irrevocably waives any right or power that such Member might have to cause
the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all
or any portion of the assets of the Company, to compel any sale of all or any portion of the assets
of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding
at law or in equity to cause the dissolution, liquidation, winding up or termination of the
Company. No Member shall have any interest in any specific assets of the Company, and no Member
shall have the status of a creditor with respect to any distribution pursuant to Section 14 hereof.
The interest of the Members in the Company is personal property.
22. Benefits of Agreement; No Third-Party Rights.
None of the provisions of this Agreement shall be for the benefit of or enforceable by any
creditor of the Company or by any creditor of any Member. Nothing in this Agreement shall be deemed
to create any right in any Person (other than Covered Persons) not a party hereto, and this
Agreement shall not be construed in any respect to be a contract in whole or in part for the
benefit of any third Person.
23. Severability of Provisions.
Each provision of this Agreement shall be considered severable and if for any reason any
provision or provisions herein are determined to be invalid, unenforceable or illegal under any
existing or future law, such invalidity, unenforceability or illegality shall not impair the
operation of or affect those portions of this Agreement which are valid, enforceable and legal.
24. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with respect to the subject
matter hereof.
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25. Governing Law.
This Agreement shall be governed by and construed under the laws of the State of Delaware
(without regard to conflict of laws principles), all rights and remedies being governed by said
laws.
26. Amendments.
This Agreement may not be modified, altered, supplemented or amended except pursuant to a
written agreement executed and delivered by the Member.
27. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an
original of this Agreement and all of which together shall constitute one and the same instrument.
28. Notices.
Any notices required to be delivered hereunder shall be in writing and personally delivered,
mailed or sent by telecopy, electronic mail, or other similar form of rapid transmission, and shall
be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at
its address in Section 2, (b) in the case of a Member, to such Member at its address as listed on
Schedule B attached hereto and (c) in the case of either of the foregoing, at such other
address as may be designated by written notice to the other party.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed
this Agreement as of the 6th day of February, 2004.
| MEMBER: CIT GROUP INC. (NJ) |
||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxx | |||
| Title: | Senior Vice President & Secretary | |||
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SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not otherwise defined herein have the
following meanings:
“Act” has the meaning set forth in the preamble to this Agreement.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly
Controlling or Controlled by or under direct or indirect common Control with such Person.
“Agreement” means this Limited Liability Company Agreement of the Company,
together with the schedules attached hereto, as amended, restated or supplemented form time
to time.
“Board” or “Board of Directors” means the Board of Directors of the
Company.
“Certificate of Formation” means the Certificate of means the Certificate of Formation
of the Company to be filed with the Secretary of State of the State of Delaware on February 6,
2004, as amended or amended and restated from time to time.
“Control” means the possession, directly or indirectly, or the power to direct or
cause the direction of the management or policies of a Person, whether through the ownership of
voting securities or general partnership or managing member interests, by contract or otherwise.
“Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of
the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.
“Covered Persons” has the meaning set forth in Section 16a.
“Directors” means the directors elected to the Board of Directors from time to time by
the Member. The initial Directors are listed on Schedule C hereto.
“Initial Member” means Newcourt Capital USA Inc., a Delaware corporation,
as the sole member of the Company.
“Management Agreement” means the agreement of the Directors in the form attached
hereto as Schedule D.
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“Member” means the Initial Member and includes any Person admitted as an additional
member of the Company or a substitute member of the Company pursuant to the provisions of this
Agreement.
“Officer” means an officer of the Company described in Section 9b.
“Person” means any individual, corporation, partnership, joint venture, limited
liability company, limited liability partnership, association, joint-stock company, trust,
unincorporated organization, or other organization, whether or not a legal entity, and any
governmental authority.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and plural forms of the
defined terms. The words “include” and “including” shall be deemed to be followed by the phrase
“without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The
Section titles appear as a matter of convenience only and shall not affect the interpretation of
this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a
particular document shall be references to such parts of this Agreement.
A-2
