LIMITED LIABILITY COMPANY AGREEMENT
OF
COPELCO CAPITAL FUNDING LLC 99-B
This Limited Liability Company Agreement, dated as of May 20, 1999, is
adopted by Copelco Capital, Inc., a Delaware corporation as the sole member
("COPELCO"), and Copelco Manager, Inc., a Delaware corporation ("Copelco
Manager"), acting as the initial manager (the "Manager").
WHEREAS, Copelco desires to form a limited liability company and engage
Manager to manage the limited liability company pursuant to the terms hereof and
Manager desires to be so engaged;
NOW, THEREFORE, Copelco and the Manager in consideration of the mutual
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, hereby covenant and
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINED TERMS.
"ACT" means the Delaware Limited Liability Company Act, Delaware Code Title
6, Sections 18-101 ET SEQ., as amended from time to time.
"AFFILIATE" when used with respect to a Person shall mean any other Person
controlling, controlled by, or under common control with, such Person.
"AGREEMENT" shall mean this Limited Liability Company Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"ASSOCIATE" shall mean, with respect to the definition of Independent
Person, (1) a corporation or organization of which such Independent Person is an
officer, director, member or partner or is, directly or indirectly, the
beneficial owner of 10 percent or more of any class of equity securities, (2)
any trust or other estate in which an Independent Person serves as trustee or in
a similar capacity, or (3) any relative or spouse of an Independent Person, or
any relative of such spouse, who has the same home as an Independent Person.
"CAPITAL CONTRIBUTIONS" shall mean the amount of cash and the fair market
value of property (as determined by the Manager and net of any liabilities to
which such property is subject or which is deemed assumed by the Company)
contributed to the Company by the Member (or the predecessor holder of the
Interest of the Member).
"COMPANY" shall mean the limited liability company formed hereby.
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"COPELCO" shall have the meaning set forth in the preamble to this
Agreement.
"DISSOLUTION AND TERMINATION" shall be deemed to have occurred upon the
earlier of the adoption of a plan of liquidation by the Manager and the Member
in accordance with this Agreement or the effective date of dissolution in
accordance with the Act.
"INDEMNIFIED PARTY" means the Member, the Manager, any officer, agent,
shareholder, director, employee or incorporator of the Member or the Manager, or
any officer, manager, employee, organizer or agent of the Company.
"INDENTURE" shall mean that certain Indenture dated as of [__________]
between the Company, COPELCO and the Trustee.
"INDEPENDENT DIRECTOR" shall mean a director of the Manager, not less than
two (2) in number, who shall not be, and for the continuation of his or her
service as Independent Director, is not: (1) a member, stockholder, director,
officer, employee, Affiliate, Associate, customer or supplier of, or a Person
that has received any benefit in any form whatever from, the Company or any of
its Affiliates or Associates, (2) a Person owning beneficially, directly or
indirectly, any interest in the Company, or a stockholder, director, officer,
employee, Affiliate, Associate, customer or supplier thereof, or a Person that
has received any direct economic benefit in any form whatever from, or a Person
that has provided any service in any form whatever to, such beneficial owner or
any of such beneficial owner's Affiliates or Associates; PROVIDED, HOWEVER, that
no Person shall be excluded from qualifying as an Independent Person solely by
reason of serving as a director or manager of one or more other Affiliates of
COPELCO that are special purpose, bankruptcy remote entities.
"INSOLVENCY EVENT" shall mean with respect to the Member: (i) the entry of
a decree or order by a court or agency for a receiver or liquidator for the
Member, in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of the
Member's affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 90 consecutive days; (ii) the consent by the Member to
the appointment of a conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Member or of or relating to substantially all
of the Member's property; or (iii) the Member shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations.
"INTEREST" shall mean the Member's ownership interest in the Company.
"MANAGER" shall initially have the meaning set forth in the preamble to
this Agreement, and thereafter, as applicable, shall mean the Person selected by
the Member pursuant to SECTION 5.1 as the manager) of the Company.
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"MEMBER" shall initially mean Copelco.
"NET CASH FLOW" shall mean, as of any date, any and all amounts received by
the Company on or before such date (other than Capital Contributions), less (i)
amounts previously distributed under SECTION 4.1, (ii) unpaid costs and accrued
expenses pursuant to SECTION 4.2 and (iii) all other cash expenditures made by
or on behalf of the Company.
"PERSON" shall mean any individual, partnership, corporation, trust,
limited liability company, association, joint venture, estate, governmental
entity or other legal person.
"ASSIGNMENT AND SERVICING AGREEMENT" shall mean that certain assignment and
servicing agreement dated as of [___________] between COPELCO and the Company.
"SECRETARY" means the Secretary of State of Delaware.
"TRUSTEE" shall mean [_______________________________], as Trustee under
the Indenture.
ARTICLE II
DEFINITIONS
Section 2.1. FORMATION OF LIMITED LIABILITY COMPANY. The Member has
resolved to form a limited liability company (the "Company") pursuant to the
Act. For that purpose, COPELCO has caused a Certificate of Formation to be
executed and filed with the Secretary. Each Person from time to time serving as
a Manager or as an agent of the Manager shall be, and hereby is, designated as
an "authorized person" within the meaning of Section 18-204 of the Act, and is
authorized and empowered to execute certificates to be filed with the Secretary
under the Act. The Manager may assign, in writing, titles (including, without
limitation, President, Vice President, Secretary and Treasurer) to any such
person. Unless the Manager withholds the same in such written assignment of
title or the delegation is otherwise precluded by this Agreement, if the title
is commonly used for officers of a business corporation formed under the
Delaware General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the power, authority and duties that are
normally associated with that office. Copelco shall be, and hereby is, admitted
as the sole member of the Company, and its Interest in the Company shall be, and
hereby is, authorized and issued. The Company is authorized to issue 1000
Membership Interests of which 100 such units have been issued to COPELCO. All
Membership Interests in the Company may be evidenced by a certificate of limited
liability company interest issued by the Company. Nothing contained herein shall
preclude the Member from pledging its Membership Interests to the Trustee.
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Section 2.2. COMPANY NAME AND PRINCIPAL OFFICE. The name of the Company
shall be "COPELCO CAPITAL Funding LLC 99-B". The Manager shall have the power
and authority and is hereby authorized and empowered, at any time to change the
name of the Company. The principal business and chief executive office of the
Company shall be 000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000. The
business of the Company may also be conducted at such additional place or places
as the Member may determine.
Section 2.3. OFFICE OF AND AGENT FOR SERVICE OF PROCESS. The registered
office of the Company in Delaware shall be maintained at Corporation Service
Company, 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000. The Company's agent
for service of process at such address shall be Corporation Service Company. The
Manager shall have the power and the authority, and is hereby authorized and
empowered to change, at any time and from time to time, the location of such
registered office and/or such registered agent upon compliance with the Act.
Section 2.4. TERM. The Company has been formed and shall commence on the
date the Certificate of Formation was filed with the Secretary, namely [XXXXXX
TO OBTAIN DATE]. The Company shall have a perpetual existence until cancellation
of the Company's Certificate of Formation.
Section 2.5. PURPOSE OF COMPANY. The purpose to be conducted or promoted by
the Company is to engage in the following activities:
(a) to acquire and own lease contracts of healthcare, manufacturing
and business equipment (together with all accessories, additions, repairs
and parts constituting a part thereof and all accessions thereto, the
"EQUIPMENT"), the monies due thereunder, the Equipment and interests
therein, insurance policies related thereto or rights to receive the
proceeds thereof, and other related rights and assets, and beneficial
interests in any or all of the foregoing (collectively, "ASSETS");
(b) to acquire, own, hold, service, lease, re-lease, transfer, sell,
assign, pledge, invest, lend and otherwise deal with Assets and interests
in Assets, cash, marketable securities, deposit or investment accounts,
demand notes and any proceeds or further rights associated with any of the
foregoing;
(c) to issue and sell notes collateralized by any or all of the Assets
pursuant to the Indenture;
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(d) to hold and enjoy all of the rights and privileges as the owner or
otherwise of the Assets;
(e) to enter into, execute, deliver and perform its obligations under
the Assignment And Servicing Agreement or any other agreement related to
the Assets (the "SECURITIZATION AGREEMENTS");
(f) to enter into and perform obligations under any intercompany
services agreement or management agreement with the Member, the Manager or
any affiliate of either thereof; and
(g) to engage in any activity and to exercise any powers permitted to
limited liability companies under the laws of the State of Delaware that
are related or incidental to the foregoing and necessary, convenient or
advisable to accomplish the foregoing.
The Company shall have the power and authority, and is hereby authorized
and empowered, to engage in the activities set forth in this SECTION 2.5, and
activities that are required or convenient for the performance of any of its
obligations pursuant to any of the agreements to which it is a party referred to
in this SECTION 2.5 and other activities approved in accordance with SECTION
5.5.
Section 2.6. ADDRESSES OF THE MEMBER AND THE MANAGER. The addresses of the
Member and the Manager are set forth in EXHIBIT A.
Section 2.7. EXCLUSIVITY. No Person may be admitted to the Company as an
additional or substitute member, except as expressly set forth in this
Agreement.
Section 2.8. TAX CHARACTERIZATION. It is the intention of the parties
hereto that, for income and franchise tax purposes, the Company shall be
disregarded as a taxable entity separate from COPELCO. The Company shall not
elect, for income or franchise tax purposes, to be treated as a corporation.
ARTICLE III
CAPITAL CONTRIBUTIONS
Section 3.1. CONTRIBUTIONS. The Member shall contribute concurrently with
the execution of this Agreement or has already contributed such amount as is
represented by the property described in EXHIBIT B as its Capital Contribution
to the Company. Such contribution is an absolute transfer and assignment of such
property to the Company, without recourse or warranty. The Manager has not made
and shall not make any Capital Contributions to the Company.
Section 3.2. ADDITIONAL CONTRIBUTIONS. The Member shall have no obligation
to make additional contributions after the date hereof, but may elect to do so
from time to time.
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ARTICLE IV
DISTRIBUTIONS
Section 4.1. DISTRIBUTIONS OF NET CASH FLOW. Distributions of Net Cash Flow
shall be made to the Member by the Manager at such times and in such amounts as
determined by the Manager, provided such distributions are not prohibited by any
agreement to which the Company is a party or the Act.
Section 4.2. EXPENSES OF THE COMPANY. The Company shall pay all costs and
expenses incurred in connection with the Company's affairs (or shall reimburse
the Manager for having incurred any such out-of-pocket expenses), including,
without limitation, all expenses of conducting the business of the Company. The
obligation to pay such costs and expenses shall be limited to the available
assets of the Company.
ARTICLE V
MANAGEMENT
Section 5.1. MANAGER. (a) The Member shall appoint the Manager and hereby
appoints the Copelco Manager as the initial Manager.
(b) The Manager, without the approval or authorization of the Member, shall
have full and exclusive management and control of the business and affairs of
the Company, including, without limitation, the power and authority to appoint
Persons to act on behalf of the Company, to hire employees and agents and
appoint officers to perform such functions as from time to time shall be
delegated to such employees, agents, and officers by the Manager and to
determine the compensation of any employees, agents and officers of the Company
or to delegate some or all compensation decisions to officers or employees of
the Company. Except as otherwise expressly provided in this Agreement, in the
event that more than one (1) Manager is appointed and acting in such capacity at
any time, the Manager shall in all cases act as a group, with a majority vote or
majority consent of the Managers then in office required to take any action. The
Manager may adopt such rules and regulations for the conduct of their meetings
and the management of the Company not inconsistent with this Agreement and the
Act.
(c) There shall be no change of Manager without prior confirmation from
[XXXXX'X INVESTOR SERVICE, INC., DUFF & XXXXXX CREDIT RATING CO. AND FITCH IBCA,
INC.] that such change will not result in either a downgrade or withdrawal of
the then current ratings of the outstanding notes issued by the Company.
Section 5.2. RESIGNATION. The Manager may resign at any time by giving
written notice to the Member, PROVIDED that the Manager may resign only after
(a) a successor Manager meeting the requirements and having similar restrictions
in its certificate or other charter documents as the resigning manager AND MEETS
THE REQUIREMENTS SET FORTH IN SECTION 5.1 AND (b) the successor Manager has
executed a counterpart to this Agreement and has assumed the duties and
obligations of the resigning Manager.
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Section 5.3. REMOVAL. Any Manager may be removed with or without cause by
the Member by written notice to the Manager being removed at any time. Such
removal shall become effective only upon acceptance of appointment by a
successor Manager meeting the requirements set forth in SECTION 5.1.
Section 5.4. COMPENSATION. The Manager shall receive such compensation as
shall from time to time be determined by the Member and shall be reimbursed by
the Company for any reasonable out-of-pocket expenses incurred by the Manager on
behalf of the Company.
Section 5.5. LIMITATION ON ACTIONS. Notwithstanding any other provision of
this Agreement and, to the fullest extent permitted by law, any provision of law
that otherwise so empowers the Manager, the Manager shall not have the power or
authority, and shall not be authorized or empowered, without the prior written
unanimous consent of all of the directors of the Manager and the prior written
consent of the Member, and any consent of any third party required under any
agreement(s) referred to in SECTION 2.5, to cause the Company to do any of the
following:
(a) engage in any business or activity, including, without limitation, the
incurrence of any indebtedness, other than as described in SECTION 2.5 or amend,
alter, change or repeal SECTION 2.5 of this Agreement hereto or this SECTION
5.5;
(b) incur any indebtedness, or assume or guaranty any indebtedness of
any other entity, other than (i) indebtedness incurred or guaranteed
pursuant to transactions set forth in SECTION 2.5 in connection with the
issuance and sale of the notes referred to in SECTION 2.5(C) and the
performance of its obligations under the agreements referred to in SECTION
2.5; and (ii) indebtedness incurred in the ordinary course of the business
of the Company;
(c) consolidate, convert or merge with or into any other Person or
convey or transfer all or substantially all of its properties and assets to
any other Person except as permitted by or in compliance with the
provisions of the agreement(s) referred to in SECTION 2.5; or
(d) dissolve or liquidate, in whole or in part, except as set forth in
ARTICLE IX, file a voluntary petition that commences a case under Title 11
of the United States Code (or any successor statutes) with respect to the
Company, or consent to the institution of bankruptcy or insolvency
proceedings against the Company or file a petition seeking, or consent to,
relief under any applicable Federal or state law relating to bankruptcy, or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or a substantial
part of the property of the Company, or make any assignment for the benefit
of creditors, or admit in writing its inability to pay the debts of the
Company generally as they become due, or take action in furtherance of any
of the foregoing.
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Section 5.6. CONDUCT OF BUSINESS. The Company shall conduct its affairs in
accordance with the following provisions:
(a) it shall maintain separate records and books of account from those
of any direct or ultimate parent of any Affiliate and any other Person;
(b) it shall not commingle the Company's assets with those of any
Affiliate;
(c) its Member shall hold meetings, as appropriate to authorize all
action on behalf of the Company and observe all other organizational
formalities of the Company;
(d) it shall not become involved in the day to day management of any
Affiliate;
(e) it shall operate so as not to be substantively consolidated with
any Affiliate;
(f) it shall maintain its assets separately from those of any
Affiliate or any other Person (including through the maintenance of a
separate bank account);
(g) it shall hold itself out as a separate entity from any Affiliate
and shall conduct business in its own name on its own stationary;
(h) it shall not act as the agent of any Affiliate;
(i) it shall pay its own expenses from its own funds, including fairly
allocating expenses shared with an affiliate;
(j) it shall maintain adequate capital in light of its contemplated
business activities; and
(k) it shall ensure that any financial transaction between the Company
and any of its affiliates shall be on commercially reasonable terms.
Section 5.7. BINDING AUTHORITY. Only the Manager (and any officers
appointed pursuant to Section 2.1 hereof) shall have the power and authority
(subject to the terms and conditions of this Agreement) to bind the Company.
ARTICLE VI
OBLIGATIONS AND/OR RIGHTS OF THE MEMBER AND THE MANAGER
Section 6.1. LIABILITY OF THE MEMBER AND THE MANAGER. Neither the Member
nor the Manager shall be personally liable for any of the debts, liabilities,
contracts or other obligations of the Company solely by reason of being the
Member or the Manager of the Company.
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Section 6.2. NO MANAGEMENT RESPONSIBILITY. The Member shall not take part
in the management of the business or the affairs, or transact any business for,
the Company, except to the extent that its approval or consent is expressly
required under this Agreement for the taking of any actions by or on behalf of
the Company.
Section 6.3. NO AUTHORITY TO ACT. The Member shall not have the authority
to act on behalf of or bind the Company.
ARTICLE VII
INDEMNIFICATION
Section 7.1. EXCULPATION AND INDEMNIFICATION OF THE MEMBER AND THE MANAGER.
(a) No Indemnified Party shall be liable to the Company for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Party in connection with any matter arising from, or related to, or
in connection with this Agreement or the Company's business or affairs;
PROVIDED, HOWEVER, that the foregoing shall not eliminate or limit the liability
of any Indemnified Party if a judgment or other final adjudication adverse to
the Indemnified Party establishes that the Indemnified Party's acts or omissions
were in bad faith or involved intentional misconduct or a knowing violation of
law or that the Indemnified Party personally gained a financial profit or other
advantage to which the Indemnified Party was not legally entitled.
(b) The Company shall, to the fullest extent permitted by the Act,
indemnify and hold harmless, and advance expenses to, each Indemnified Party
against any losses, claims, damages or liabilities to which the Indemnified
Party may become subject in connection with any matter arising from, related to,
or in connection with, this Agreement or the Company's business or affairs;
PROVIDED, HOWEVER, that no indemnification may be made to or on behalf of any
Indemnified Party if a judgment or other final adjudication adverse to the
Indemnified Party establishes (i) that the Indemnified Party's acts or omissions
giving rise to such losses, claims, damages or liabilities were committed in bad
faith or were the result of active and deliberate dishonesty and were material
to the cause of action so adjudicated or (ii) that the Indemnified Party
personally gained a financial profit or other advantage to which the Indemnified
Party was not legally entitled ; PROVIDED, FURTHER that such indemnification
shall be subject to the terms of, and shall be subordinate to the obligations
(if any) payable under, the agreements referred to in SECTION 2.5 to which the
Company is a party.
(c) Notwithstanding anything else contained in this Agreement, the
indemnity obligations of the Company under PARAGRAPH (B) above shall:
(i) be in addition to any liability that the Company may otherwise
have;
(ii) inure to the benefit of the successors, assigns, heirs and
personal representatives of each Indemnified Party; and
(iii) be limited to the assets of the Company.
(d) This ARTICLE VII shall survive any termination of this Agreement and
the dissolution of the Company.
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ARTICLE VIII
TRANSFERABILITY OF MEMBER'S INTERESTS
Section 8.1 RESTRICTION ON TRANSFER. The Member may not sell or otherwise
transfer its Interest unless such transfer is: (i) involuntary, (ii) by
operation of law, (iii) is not prohibited by any agreement referred to in
SECTION 2.5 hereof or (iv) is expressly permitted pursuant to Section 2.1
hereof.
Section 8.2. TRANSFER FOR SECURITY. Except (i) as otherwise permitted
pursuant to Section 2.1 hereof, or (ii) as permitted by or in compliance with
the provisions of the agreements referred to in SECTION 2.5, the Member may not
pledge, mortgage or otherwise hypothecate all or any part of its right, title
and interest in distributions to be received from the Company.
ARTICLE IX
DISSOLUTION AND LIQUIDATION
Section 9.1. DISSOLUTION. The Company shall be dissolved and its affairs
shall be wound up solely upon the occurrence of any of the following events:
(a) the happening of any event that makes it unlawful to carry on the
business of the Company;
(b) judicial dissolution pursuant to the Act; or
(c) subject to the requirements of each agreement referred to in
SECTION 2.5 to which the Company is a party, the Company is dissolved by
the unanimous written consent of the Manager and the Member as provided in
SECTION 5.5. Neither the Member acting alone or the Member acting with the
consent of less than all of the directors of the Manager shall have the
power or authority, to dissolve the Company and wind up its affairs; or
(d) there is no Member.
Section 9.2. CONTINUATION OF COMPANY. In the event of the dissolution,
bankruptcy or Insolvency Event of the Member, the Company shall continue and
shall not dissolve, but Copelco Financial Services Group, Inc., or any other
entity designated by Copelco Financial Services Group, Inc., shall, effective
immediately prior to the happening of such event, be admitted as the Member of
the Company, but shall not have any Membership Interest or any portion thereof.
The Manager shall not have the power or authority to dissolve the Company
pursuant to Section 18-801(b) of the Act.
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Section 9.3. WINDING UP AND LIQUIDATION OF THE COMPANY. Upon dissolution,
the Company shall continue solely for the purpose of winding up its affairs in
an orderly manner, liquidating its assets and satisfying the claims of creditors
and the Member. In so doing, a full accounting of the assets and liabilities of
the Company shall be taken and the Company's assets shall be distributed as
promptly as possible as hereinafter provided:
(a) to the payment (or the making of reasonable provision for the
payment) of such debts and liabilities of the Company (or reserves
therefor), including any necessary expenses of liquidation, except any
debts, liabilities and loans that may be due to the Member, in the order of
priority as provided by law; and
(b) to the payment (or the making of reasonable provision for the
payment) of any debts and liabilities that may be due to the Member and to
the payment (or the making of reasonable provision for the payment) of the
unpaid principal balance and the interest accrued thereon on loans, if any,
made by the Member to the Company.
All of the assets of the Company shall be distributed on dissolution.
ARTICLE X
POWER OF ATTORNEY
Section 10.1. MANAGER AS ATTORNEY-IN-FACT. Subject, at all times and in all
cases to the provisions of Section 5.5, the Member hereby makes, constitutes,
and appoints the Manager, with full power of substitution and resubstitution,
its true and lawful attorneys-in-fact for it and in its name, place, and stead
and for its use and benefit, to sign, execute, certify, acknowledge, swear to,
file, and record (a) all limited liability company certificates, assumed name or
similar certificates, and other certificates and instruments (including
counterparts of this Agreement) which the Manager deems necessary in its
reasonable discretion to be filed by the Company under the laws of the State of
Delaware or any other state or jurisdiction in which the Company is doing or
intends to do business; (b) any and all amendments or changes to the instruments
described in CLAUSE (A), as now or hereafter amended, which the Manager may deem
necessary in its reasonable discretion to effect a change or modification of the
Company in accordance with the terms of this Agreement, including, without
limitation, amendments or changes to reflect any amendments adopted by the
Member in accordance with the terms of this Agreement; (c) all certificates of
cancellation and other instruments which the Manager deems necessary in its
reasonable discretion to effect the dissolution and termination of the Company
pursuant to the terms of this Agreement; and (d) any other instrument which is
now or may hereafter be required by law to be filed on behalf of the Company or
is deemed necessary by the Manager in its reasonable discretion to carry out
fully the provisions of this Agreement in accordance with its terms. The Member
authorizes such attorney-in-fact to take any further action which such
attorney-in-fact shall reasonably consider necessary in connection with any of
the foregoing, hereby giving such attorney-in-fact full power and authority to
do and perform each and every act or thing whatsoever requisite or advisable to
be done in connection with the foregoing as fully as the Member might or could
do personally, and hereby ratifying and confirming all that any such
attorneys-in-fact shall lawfully do or cause to be done by virtue thereof or
hereof.
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Section 10.2. NATURE OF SPECIAL POWER. The power of attorney granted
pursuant to this ARTICLE X:
(a) is a special power of attorney coupled with an interest and is
irrevocable;
(b) may be exercised by all such attorney-in-fact by identifying the
Member executing any agreement, certificate, instrument or other document
with the signature of a duly authorized officer of such attorneys-in-fact
for such Member; and
(c) shall not be affected by and shall survive the bankruptcy,
insolvency, dissolution, disability, incapacity or cessation of existence
of the Member and shall survive the delivery of an assignment by the Member
of its interest in the Company, except that where an assignee of the Member
is admitted as a substituted Member, the power of attorney shall survive
the delivery of such assignment for the sole purpose of enabling all such
attorney-in-fact to effect such substitution.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. NOTICES. Any notices or communications hereunder shall be in
writing, and may be either delivered personally (which shall include deliveries
by courier), by facsimile transmission or mailed, postage prepaid, by certified
or registered mail, return receipt requested, directed to the parties at their
respective addresses or fax numbers set forth in EXHIBIT A. Any party hereto may
designate a different address to which notices and demands shall thereafter be
directed by written notice given in the same manner and directed to the Company
at its office hereinabove set forth.
Section 11.2. AMENDMENTS. This Agreement shall be amended only by the
written consent of the Member and the Manager; provided, however, that (i) this
Section 11.2 and Sections 5.1, 5.2 and 5.5 may not be amended; and (ii) notice
of any such amendment will be provided to Standard and Poors Structured Finance
00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Asset Backed
Surveillance Department within a reasonable time after such amendment has been
executed.
Section 11.3. HEADINGS. The headings of the various Articles and Sections
herein are for the convenience of reference only and shall not define or limit
any of the terms or provisions hereof.
Section 11.4. SEVERABILITY. If any one or more of the provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
provisions or terms shall be deemed severable from the remaining provisions or
terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 11.5. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.6. COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
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Section 11.7. EFFECT OF AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors and
assigns.
Section 11.8. INTEGRATION. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior agreements and understandings and contemporaneous agreements and
understandings pertaining thereto.
IN WITNESS WHEREOF, this Limited Liability Company Agreement has been
executed as of the date first above written.
COPELCO CAPITAL, INC., as Member
By:
----------------------------------
Xxxxxxxx Xxxxxxxxxx
Senior Vice President, Chief
Financial Officer and Treasurer
COPELCO MANAGER, INC.,
as the Manager
By:
----------------------------------
Xxxxxxx Xxxxxxx
Vice President
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EXHIBIT A
ADDRESSES OF THE MEMBER AND THE MANAGER
Copelco Capital, Inc., as Member
Xxx Xxxxxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Copelco Manager, Inc., as the Manager
000 Xxxx Xxxx Xxxxx
Xx. Xxxxxx, Xxx Xxxxxx 00000
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EXHIBIT "B"
CAPITAL CONTRIBUTION OF MEMBER
COPELCO CAPITAL, INC.: ............................................ $1000.00
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