EXHIBIT 4(a)
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CEF EQUIPMENT HOLDING, L.L.C.
(A DELAWARE LIMITED LIABILITY COMPANY)
Dated September 25, 2003
Second Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
CEF EQUIPMENT HOLDING, L.L.C.
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT dated as of September 25, 2003, adopted by General Electric Capital
Services, Inc., as a member (the "Initial Member").
Preliminary Statement
The Initial Member formed a limited liability company under
the Delaware Limited Liability Company Act (currently Chapter 18 of Title 6 of
the Delaware Code, as amended from time to time (the "Act").
The Initial Member adopted the Limited Liability Company
Agreement, dated of June 17, 2002 as amended to the date hereof(the "Original
Agreement") and desires to amend and restate the Original Agreement to provide
for the issuance of Variable Funding Certificates and the addition of a Special
Member and an Independent Manager to the Company.
Accordingly, the Initial Member hereby amends and restates the
Original Agreement in its entirety and hereby adopts the following as the
"Limited Liability Company Agreement" of the Company within the meaning of
Section 18-101(7) of the Act.
ARTICLE I
SECTION 1.1 Definitions. Capitalized terms used in this
Agreement and not otherwise defined herein shall have the meanings assigned to
such terms in the "Definitions Addendum" attached to this Agreement and
incorporated herein and shall otherwise have the meanings assigned to such terms
in the Act.
ARTICLE II
SECTION 2.1 Formation. The Company was formed as a limited
liability company pursuant to the provisions of the Act on June 17, 2002, by the
entry into the Original Agreement and the filing of the Certificate of Formation
with the office of the Secretary of State of Delaware. The Initial Member hereby
adopts, confirms and ratifies said Certificate of Formation and all acts taken
in connection therewith. Xxxxxxx Xxxxxxx is hereby designated as an "authorized
person" within the meaning of the Act, and has executed, delivered and filed the
Certificate of Formation of the Company 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" ceased
and Xxxxxxx X. Xxxxxx became the designated "authorized person" within the
meaning of the Act. Upon the filing of the Amended and Restated Certificate of
Formation of the Company, his powers as an "authorized person" ceased, 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
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. The
existence of the Company as a separate legal entity shall continue until
cancellation of the Certificate of Formation as provided in the Act.
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
ARTICLE III
SECTION 3.1 Name. The name of the Company is CEF Equipment
Holding, L.L.C.
ARTICLE IV
SECTION 4.1 Purpose and Limitations on Activities. The Company
shall limit its purposes and activities to engaging in the following activities:
(a) (i) to issue and/or sale of Membership
Interests, on the terms and conditions set forth herein;
(ii) to acquire (through purchase or otherwise)
from certain sellers and to hold, service, sell, transfer and
pledge, equipment loan and lease receivables, mortgage loans
and receivables and any related rights, documents, assets and
interests, including any interest in the equipment, mortgaged
property or other assets related thereto ("Assets");
(iii) to enter into any agreement providing for
the acquisition, sale, financing, servicing, hedging or
transfer of the Assets or interests in the Assets;
(iv) to retain or reacquire an interest in the
Assets;
(v) to act as settlor or depositor, member,
manager or similar capacity of trusts or other entities or to
own equity or other beneficial interests in trusts, limited
liability companies or other entities, each of which is formed
in part to issue Securities (each, an "Issuer");
(vi) to acquire, own, hold, transfer, assign,
pledge, sell and otherwise deal with any interests in an
Issuer or Securities issued by an Issuer;
(vii) to enter into, execute and deliver any
underwriting agreement, purchase or placement agreement
relating to the sale or placement of any securities issued by
an Issuer, any sale and servicing agreement, pooling and
servicing agreement, trust agreement, limited liability
company agreement, purchase agreement, administration
agreement, custodial agreement, insurance agreement or any
other agreement which may be required or advisable to effect
the administration or servicing of the Assets or the issuance
and sale of any Securities or the formation of an Issuer
(each, a "Securitization Agreement"), and to perform its
obligations under each Securitization Agreement to which it is
a party;
(viii) to establish any reserve account, spread
account or other credit or cash flow enhancement for the
benefit of any Securities issued by the Company or any Issuer
and to loan, transfer or otherwise invest any proceeds from
Assets and any other income as determined by the Manager;
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
2
(ix) to purchase financial guaranty insurance
policies for the benefit of any Security issued by the Company
or any Issuer;
(x) to enter into any interest rate or basis
swap, cap, floor or collar agreements, currency exchange
agreements or similar hedging transactions relating to any
Assets or for the benefit of any Security issued by the
Company or any Issuer;
(xi) to prepare, execute and file with the
Securities and Exchange Commission registration statements,
including one or more prospectuses and forms of prospectus
supplement, relating to any Securities to be issued on a
delayed or continuous basis;
(xii) to prepare private placement memoranda
relating to Securities to be offered and issued privately;
(xiii) for federal, state or local tax purposes, to
serve as "General Partner" or Member of any Issuer;
(xiv) lending or otherwise investing proceeds from
Assets and any other income; and
(xv) any purposes and activities necessary,
convenient or incidental to the conduct, promotion or
attainment of the business purposes and activities of the
Company as set forth in clauses (i) through (xiv) above.
(b) The Company, by or through the Initial Member,
Officer, or any Manager on behalf of the Company, may enter into and
perform the Transaction Documents and all documents, agreements,
certificates, or financing statements contemplated thereby or related
thereto, together with any amendments or supplements thereto, all
without any further act, vote or approval of any other Person,
including the Independent Manager, notwithstanding any other provision
of this Agreement, the Act or applicable law, rule or regulation. The
foregoing authorization shall not be deemed a restriction on the powers
of the Initial Member or any Manager to enter into other agreements on
behalf of the Company.
ARTICLE V
SECTION 5.1 Registered Office; Other Offices. The address of
the registered office of the Company in the State of Delaware is c/o The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx, 00000. The Initial Member may establish other offices of the Company
at such locations within or outside the State of Delaware as the Initial Member
may determine.
ARTICLE VI
SECTION 6.1 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
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
3
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx, 00000.
ARTICLE VII
SECTION 7.1 Admission of Members. (a) By execution of this
Agreement, the Initial Member hereby continues as a member of the Company and
shall have such rights in and to the profits and losses of the Company and
rights to receive distributions of the Company's assets, and such other rights
and obligations, as provided herein.
(b) The Manager, without the consent of the Member or any
other Person, may cause the Company to issue additional Membership Interests,
other than the Variable Funding Certificates, and thereby admit a new Member or
new Members, as the case may be, to the Company, only if such new Member (i) has
delivered to the Initial Member its capital contribution, (ii) has agreed in
writing to be bound by the terms of this Agreement by becoming a party hereto,
and (iii) has delivered such additional documentation as the Initial Member
shall reasonably require to so admit such new Member to the Company.
SECTION 7.2 Initial Member. The name and the address of the
Initial Member of the Company is as follows:
General Electric Capital Services, Inc.
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
SECTION 7.3 Replacement of Initial Member. Upon the occurrence
of any event that causes the last remaining Member to cease to be a member of
the Company (other than upon an assignment by the last remaining Member of all
of its Membership Interest and variable funding certificates in the Company and
the admission of the transferee pursuant to Article XII), each person acting as
an Independent Manager pursuant to Section 8.3 shall, without any action of any
Person and simultaneously with the last remaining Member ceasing to be a member
of the Company, automatically be admitted to the Company as a Special Member and
shall continue the Company without dissolution. No Special Member may resign
from the Company or transfer its rights as Special Member unless (i) a successor
Special Member has been admitted to the Company as Special Member by executing a
counterpart to this Agreement, and (ii) such successor has also accepted its
appointment as Independent Manager pursuant to Section 8.3; provided, however, a
Special Member shall automatically cease to be a member of the Company upon the
admission to the Company of a substitute Member replacing such Special Member.
Each Special Member shall be a member of the Company that has no interest in the
profits, losses and capital of the Company and has no right to receive any
distributions of Company assets. Pursuant to Section 18-301(d) of the Act, a
Special Member shall not be required to make any capital contributions to the
Company and shall not receive a limited liability company interest in the
Company. A Special Member, in its capacity as Special Member, may not bind the
Company. Except as required by any mandatory provision of the Act, each Special
Member, in its capacity as Special Member, shall have no right to vote on,
approve or otherwise consent to any action by, or matter relating to, the
Company, including, without limitation, the merger, consolidation or conversion
of the Company. In order to implement the
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
4
admission to the Company of each Special Member, each person acting as an
Independent Manager pursuant to Section 8.3 shall execute a counterpart to this
Agreement. Prior to its admission to the Company as Special Member, each person
acting as an Independent Manager pursuant to Section 8.3 shall not be a member
of the Company.
SECTION 7.4 Issuance of Variable Funding Certificates in
Series; Series Supplements. (a) In connection with the Company's contribution
and/or sale of a pool of Assets to any Issuer in connection with any
securitization transaction and/or issuance of Securities (each such pool of
Assets, a "Securitized Pool"), the Manager may without the consent of any member
or other Person cause the Company to issue one or more variable funding limited
liability company interests in the Company evidenced by certificates (each, a
"Variable Funding Certificate") pursuant to a Series Supplement to this
Agreement. Each Variable Funding Certificate related to the Issuer holding or
acquiring a single Securitized Pool shall constitute a "Series" of limited
liability company interests in the Company within the meaning of Section 18-215
of the Act. Upon its execution of the related Series Supplement, each holder of
a Variable Funding Certificate (including any permitted transferee) shall be
admitted as a new Member of the Company, shall agree to make capital
contributions to the Company in accordance with Article X of this Agreement, and
shall agree that it shall be entitled to distributions with respect to its
capital contributions represented by any Variable Funding Certificate only in
accordance with Section 11.1 and solely from distributions from the Issuer
holding or acquiring the Securitized Pool received by the Company from time to
time.
(b) Each Series Supplement shall be executed by the
Manager and each initial holder of a Variable Funding Certificate of such
Series. The Company shall maintain a register of the holders of the Variable
Funding Certificates of each Series and shall register any transfer of such
Series of Variable Funding Certificates in such register.
(c) Each Series Supplement shall set forth the following
information, or the method to calculate any such amounts, with respect to the
related Series of Variable Funding Certificates and Securitized Pool:
(i) the Amounts Available for Distribution;
(ii) the Business Days;
(iii) the Payment Dates;
(iv) the Outstanding Unfunded Capital Commitment;
and
(v) the Variable Funding Capital Commitment.
(d) The Company shall keep separate and distinct records
for each Series and the assets associated with any such Series shall be held
(directly or indirectly, including through a nominee or otherwise) and accounted
for separately from the other assets of the Company, or any other Series
thereof. The debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to a particular Series shall be
enforceable against the assets of such Series only and not against the assets of
the Company generally or any other Series thereof. None of the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
5
existing with respect to the Company generally or any other Series thereof shall
be enforceable against the assets of such Series
(e) The terms of each additional Series shall be as set
forth in this Agreement and in the related Series Supplement, and each such
Series Supplement is incorporated herein by reference and constitutes a part of
this Agreement. Each Series may have rights, terms and preferences different
from or senior to any other Series or the Membership Interests, and may be
issued without the consent of any other Person, notwithstanding any other
provision of this Agreement.
ARTICLE VIII
SECTION 8.1 Management. Management of the Company is initially
vested solely in the Initial Member, except to the limited extent set forth in
Section 8.4 with respect to the Independent Manager. The Initial Member of the
Company shall be a "manager" within the meaning of the Act (a "Manager") until
such time as the Initial Member appoints one or more Managers to replace the
Initial Member in its capacity as Manager. Each Manager shall perform duties, on
behalf of the Company as Manager, as set forth in this Agreement and in the Act
and may enter into contracts with Persons on behalf of the Company and engage in
activities on behalf of the Company, including issuing, delivering and executing
contracts, agreements and other documents in connection therewith, in each case
in accordance with Section 4.1.
SECTION 8.2 Managers to Provide Information to the Initial
Member. It shall be the duty of each Manager other than the Initial Member to
keep the Initial Member reasonably informed as to material events relating to
the Company, including, without limitation, all claims pending or threatened
against the Company and the execution by such Manager on behalf of the Company
of any material agreements or instruments.
SECTION 8.3 Independent Manager. As long as any Obligation is
outstanding, the Manager shall cause the Company at all times to have at least
one Independent Manager who will be appointed by the Manager. To the fullest
extent permitted by law, including Section 18-1101(c) of the Act, it is intended
that the Independent Manager shall consider only the interests of the Company,
including its respective creditors, in acting or otherwise voting on the matters
referred to in Section 8.4. No resignation or removal of an Independent Manager,
and no appointment of a successor Independent Manager, shall be effective until
such successor (i) shall have accepted his or her appointment as an Independent
Manager by a written instrument, and (ii) shall have executed a counterpart to
this Agreement as required by Section 7.3. In the event of a vacancy in the
position of Independent Manager, the Initial Member shall, as soon as
practicable, appoint a successor Independent Manager. The Independent Manager is
a "Manager" of the Company within the meaning of the Act; provided, however, all
right, power and authority of the Independent Manager shall be limited to the
extent necessary to exercise only those rights and perform those duties
specifically set forth in this Agreement. Except as provided in the second
sentence of this Section 8.3, in exercising their rights and performing their
duties under this Agreement, any Independent Manager shall have a fiduciary duty
of loyalty and care similar to that of a director of a business corporation
organized under the General Corporation Law of the State of Delaware. No
Independent Manager shall at any time
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
6
serve as trustee in bankruptcy for any Affiliate of the Company. The initial
Independent Manager of the Company is Xxxxx X. Xxxxx.
SECTION 8.4 Limitations on the Company's Activities. (a) This
Section 8.4 is being adopted in order to comply with certain provisions required
in order to qualify the Company as a "special purpose" entity.
(b) The Members shall not, so long as any Obligation is
outstanding, amend, alter, change or repeal the definition of "Independent
Manager" or Sections 4.1, 7.1, 7.3, 8.1, 8.2, 8.3, 8.4, 15.1, 16.1, or 16.4 of
this Agreement without the unanimous written consent of the Managers and all
Independent Managers. Subject to this Section 8.4, the Members reserve the right
to amend, alter, change or repeal any provisions contained in this Agreement in
accordance with Section 16.2.
(c) Notwithstanding any other provision of this Agreement
and any provision of law that otherwise so empowers the Company, the Members,
the Managers, any Officer or any other Person, neither the Members nor the
Managers nor any Officer nor any other Person as long as any Obligation is
outstanding, shall be authorized or empowered, nor shall they permit the
Company, without the prior written consent of the Members and a majority of the
Managers and all Independent Managers, to take any Material Action, provided,
however, that as long as any Obligation is outstanding, that the Members and
Managers may not vote on, or authorize the taking of, any Material Action,
unless there is at least one Independent Manager then serving in such capacity.
Except to the limited extent set forth in this Section 8.4, all power to manage
the affairs of the Company shall be vested in each Manager and not in any
Independent Manager.
(d) The Manager shall cause the Company to do or cause to
be done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if: (1) the Manager shall determine that the preservation thereof is no longer
desirable for the conduct of its business and that the loss thereof is not
disadvantageous, in any material respect to the Company and (2) the Rating
Agency Condition is satisfied. So long as any Obligation is outstanding, the
Manager also shall cause the Company to:
(i) maintain its own stationery and other
business forms separate from those of any other Person
(including the Members), and conduct business in its own name
except that certain Persons may act on behalf of the Purchaser
as agents;
(ii) maintain separate office space of its own as
part of its operations, although such space may be in a
building shared with the Members (or any Affiliate thereof);
(iii) segregate its corporate records, other books
and records, and other assets from the property of the
Members;
(iv) take certain actions to disclose publicly
the Company's separate existence and the transactions
contemplated by any Securitization Agreement,
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
7
including through the filing of financing statements under the
Uniform Commercial Code;
(v) not conceal from any interested party any
transfers contemplated by the Transaction Documents;
(vi) allocate any direct, indirect or overhead
expenses for items shared between the Company and the Members
to the extent practical on the basis of actual use or value of
services rendered and otherwise on a basis reasonably related
to actual use or the value of services rendered;
(vii) pay its own operating expenses and
liabilities from its own funds, except the Members may pay any
or all expenses of the Company incurred in connection with the
transactions entered into pursuant to any Transaction
Documents, including those related to the Company's
organization and except as is set forth in the preceding
paragraph regarding certain shared overhead expenses;
(viii) maintain its assets and liabilities in such
a manner that it is not costly or difficult to segregate,
ascertain or otherwise identify the Company's individual
assets and liabilities from those of the Initial Member or
from those of any other person or entity, including any
Affiliate of the Initial Member, and, except as set forth
below, maintain its own books of account and corporate records
separate from the Initial Member or any Affiliate thereof;
(ix) properly reflect any monetary transactions,
including those with the Initial Member, in its financial
records;
(x) except as is set forth in any Transaction
Documents, not commingle or pool its funds or other assets or
liabilities with those of the Initial Member or any other
Person;
(xi) except as is set forth in any Transaction
Documents, not maintain joint bank accounts or other
depository accounts to which the Initial Member (other than in
their capacity as agent or Manager for the Company) has
independent access;
(xii) strictly observe corporate formalities,
including with respect to its dealings with the Initial Member
and any Affiliate thereof and any transfer of assets between
the Company, on the one hand, and the Initial Member or any
Affiliate thereof, on the other;
(xiii) enter into any Transaction Documents with
the Initial Member or any Affiliate thereof, including the
agreements governing any servicer advances with respect to any
Assets and the amount and payment of the servicing fee with
respect to any Securitized Pool, on terms and conditions that
are consistent with those of arm's-length relationships;
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
8
(xiv) not hold itself out to be, responsible for,
or guaranty the debts of, the Initial Member, except as is
contemplated by any Transaction Document;
(xv) make all distributions to the Initial
Member, in its capacity as the Company's sole member, in
accordance with applicable law;
(xvi) enter into any other transactions with the
Initial Member and any Affiliate thereof permitted by
(although not expressly provided for in) any Transaction
Documents only if: (x) the terms of any such transaction are
fair and equitable to each of the parties and at least as
favorable as may be obtained from a third party Person and (y)
such transactions are the type of transaction that would be
entered into by a prudent person or entity; and
(xvii) not be named, or enter into any agreement to
be named, directly or indirectly, as a direct or contingent
beneficiary or loss payee on any insurance policy covering the
assets of the Initial Member.
SECTION 8.5 Officers.
(a) Officers. The initial Officers of the Company shall
be designated by the Initial Member. The additional or successor Officers of the
Company shall be chosen by the Manager and shall consist of at least a
President, a Secretary and a Treasurer. The Manager may also choose one or more
Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any number of
offices may be held by the same person. The Manager shall choose a President, a
Secretary and a Treasurer. The Manager may appoint such other Officers and
agents as it shall deem necessary or advisable who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Manager. The salaries of all Officers and
agents of the Company shall be fixed by or in the manner prescribed by the
Manager. The Officers of the Company shall hold office until their successors
are chosen and qualified. Any Officer may be removed at any time, with or
without cause, by the affirmative vote of a majority of the Manager. Any vacancy
occurring in any office of the Company shall be filled by the Manager. The
initial Officers of the Company designated by the Initial Member are listed on
Schedule I hereto.
(b) President. The President shall be the principal
executive officer of the Company, shall preside at all meetings of the Manager,
shall be responsible for the general and active management of the business of
the Company and shall see that all orders and resolutions of the Manager are
carried into effect.
(c) Chief Financial Officer. The Chief Financial Officer
shall be the principal financial officer of the Company and shall be responsible
for the financial affairs of the Company.
(d) Vice President. In the absence of the President or in
the event of the President's inability to act, the Vice President, if any (or in
the event there be more than one Vice President, the Vice Presidents in the
order designated by the Manager, or in the absence of any designation, then in
the order of their election), shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
9
President. The Vice Presidents, if any, shall perform such other duties and have
such other powers as the Manager may from time to time prescribe.
(e) Secretary and Assistant Secretary. The Secretary
shall be responsible for filing legal documents and maintaining records for the
Company. The Secretary shall attend all meetings of the Manager and record all
the proceedings of the meetings of the Company and of the Manager in a book to
be kept for that purpose and shall perform like duties for the standing
committees when required. The Secretary shall give, or shall cause to be given,
notice of all meetings of the Initial Member, if any, and special meetings of
the Manager, and shall perform such other duties as may be prescribed by the
Manager or the President, under whose supervision the Secretary shall serve. The
Assistant Secretary, or if there be more than one, the Assistant Secretaries in
the order determined by the Manager (or if there be no such determination, then
in order of their election), shall, in the absence of the Secretary or in the
event of the Secretary's inability to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the Manager may from time to time prescribe.
(f) Treasurer and Assistant Treasurer. The Treasurer
shall be the principal accounting officer of the Company and shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Manager.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Manager, taking proper vouchers for such disbursements, and shall render to the
President and to the Manager, at its regular meetings or when the Manager so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Manager (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Manager may from
time to time prescribe.
(g) Officers as Agents. Any Officer shall be authorized
to execute any Transaction Document and all bonds, mortgages and other
contracts, except: (i) where required by law or this Agreement to be otherwise
signed and executed, including Section 4.1(b) and (ii) where signing and
execution thereof shall be expressly delegated by the Manager to some other
Officer or agent of the Company.
ARTICLE IX
SECTION 9.1 Initial Capital Contributions. The initial cash
capital contribution made by the Initial Member promptly after the execution of
the Original Agreement was $10,000, which relates to a Membership Interest.
ARTICLE X
SECTION 10.1 Additional Contributions. (a) Except as is
otherwise set forth in Section 10.2 below, the Members shall have no obligation
to make any additional capital
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
10
contribution to the Company after the date hereof, but the Initial Member may
elect to do so from time to time.
SECTION 10.2 Capital Contributions of the Holders of each
Series of Variable Funding Certificates. Upon demand of the Company or as
provided in Section 16.7, the holder(s) of any Variable Funding Certificate of
any Series shall be obligated to make capital contributions to the Company in an
aggregate amount equal to the Outstanding Unfunded Capital Commitment for such
Series on the date of such request. Not later than 2:00 p.m. on the Business Day
following its receipt of a Variable Funding Certificate Capital Contribution
Request with respect to any Series of Variable Funding Certificates, each holder
of a Variable Funding Certificate in such Series shall fund its Percentage
Interest of the amount indicated by the Company in such Variable Funding
Certificate Capital Contribution Request by wire transfer of immediately
available funds to the account or accounts designated by the Company.
ARTICLE XI
SECTION 11.1 Distributions. Distributions shall be made to the
Members, other than the holder of any Variable Funding Certificates, at the
times and in the aggregate amounts determined by the Manager, subject to the
limitation of the Act and other applicable laws; provided that all Amounts
Available for Distribution received by the Company on any Payment Date from an
Issuer with respect to any Securitized Pool shall be distributed to each holder
of any Variable Funding Certificate of the related Series, if any, in accordance
with Section 11.2 below.
SECTION 11.2 Distributions to the Holders of the Variable
Funding Certificates of any Series. Subject to the limitations of the Act and
other applicable laws, on each Payment Date for any Series, the Company shall
distribute to each holder of a Variable Funding Certificate of such Series, in
accordance with such holder's Percentage Interest, all Amounts Available for
Distribution with respect to such Series on such Payment Date.
SECTION 11.3 Distribution upon Resignation. Upon resignation
from the Company any withdrawing Member shall not be entitled to receive any
distribution and shall not otherwise be entitled to receive the fair market
value of its Membership Interest or Variable Funding Certificate.
ARTICLE XII
SECTION 12.1 Transfers. (a) A Member other than the Initial
Member may not Transfer any part of its Membership Interest without the prior
written consent of the Initial Member, which consent may be withheld by the
Initial Member in its sole discretion. Any purported Transfer of any Membership
Interest in contravention of this Section 12.1 shall, to the fullest extent
permitted by law, be null and void and of no force or effect whatsoever.
(b) A permitted transferee of a Member's Membership
Interest shall be admitted to the Company as substitute Member only if such
transferee (i) has agreed in writing to be bound by the terms of this Agreement
by becoming a party hereto and (ii) has delivered such additional documentation
as the Initial Member shall reasonably require to so admit such transferee to
the Company. Notwithstanding anything contained herein to the contrary, both the
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
11
Company and the Initial Member shall be entitled to treat the transferor of a
Membership Interest as the absolute owner thereof in all respects, and shall
incur no liability for distributions of cash or other property made in good
faith to it, until such time as a written assignment or other evidence of the
consummation of a Transfer that conforms to the requirements of this Section
12.1 and is reasonably satisfactory to the Initial Member has been received by
the Company. The effective date of any Transfer permitted under this Agreement
shall be the close of business on the day of receipt thereof by the Company.
(c) Each Holder of a Variable Funding Certificate may not
transfer, assign or convey its Variable Funding Certificate without the consent
of the Company and its permitted successors and assigns hereunder which consent
shall not be unreasonably withheld. No transfer, assignment or conveyance of any
Variable Funding Certificate will be effective prior to notice to the Initial
Member and the Company and recordation by the Company thereof in its register
for such Series of Variable Funding Certificates maintained pursuant to Section
7.4(b) hereof.
(d) If a Member transfers all of its Membership Interest
and Variable Funding Certificates, it shall not cease to be a member of the
Company until the transferee is admitted as a Substitute Member.
SECTION 12.2 Restrictions on Expulsion. No Member shall be
expelled as a Member under any circumstances.
ARTICLE XIII
SECTION 13.1 Liability of Members. Except as required by the
Act, no Member, Manager or Independent Manager solely by reason of its capacity
as such will be liable for the debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, which debts,
obligations and liabilities shall be solely the debts, obligations and
liabilities of the Company.
ARTICLE XIV
SECTION 14.1 Exculpation and Indemnification of Members and
Managers. (a) No Indemnified Party shall be liable to the Company for any loss,
damage or claim incurred by reason of any act performed or any act 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 in fact 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
law, 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
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
12
business or affairs; provided, however, that no indemnification may be made to
or on behalf of any Indemnified Party (and any expenses advanced shall be
returned) if a judgment or other final adjudication adverse to the Indemnified
Party establishes (i) that the Indemnified Party's acts 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 in fact a financial profit or other advantage to which the
Indemnified Party was not legally entitled.
(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.
(b) This Article XIV shall survive any termination of
this Agreement and the dissolution of the Company.
ARTICLE XV
SECTION 15.1 Duration and Dissolution. (a) The Company shall
be dissolved, and its affairs shall be wound up upon the first to occur of the
following: (i) the termination of the legal existence of the last remaining
member of the Company or the occurrence of any other event which terminates the
continued membership of the last remaining member of the Company in the Company
unless the Company is continued in a manner permitted by this Agreement or the
Act or (ii) the entry of a decree of judicial dissolution under Section 18-802
of the Act. Upon the occurrence of any event that causes the last remaining
member of the Company to cease to be a member of the Company, to the fullest
extent permitted by law, the personal representative of such member is hereby
authorized to, and shall, within 90 days after the occurrence of the event that
terminated the continued membership of such member in the Company, agree in
writing (A) to continue the Company and (B) to admit of the personal
representative or its nominee or designee, as the case may be, as a substitute
member of the Company, effective as of the occurrence of the event that
terminated the continued membership of the last remaining member of the Company
in the Company.
(b) Notwithstanding any other provision of this
Agreement, the Bankruptcy of any Member or a Special Member shall not cause such
Member or Special Member, respectively, to cease to be a Member of the Company
and upon the occurrence of such an event, the Company shall continue without
dissolution.
(c) Notwithstanding any other provision of this
Agreement, each Member and the Special Member waives any right it might have to
agree in writing to dissolve the Company upon the Bankruptcy of such Member or
Special Member, or the occurrence of an event that causes such Member or Special
Member to cease to be a member of the Company.
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
13
(d) 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.
(e) The Company shall terminate when (i) all of the
assets of the Company, after payment of or due provision for all debts,
liabilities and obligations of the Company (including all Obligations of the
Company), shall have been distributed to the Members in the manner provided for
in this Agreement and (ii) the Certificate of Formation shall have been canceled
in the manner required by the Act.
ARTICLE XVI
SECTION 16.1 Amendments; Series Supplement. (a) Subject to
Section 8.4 and except as is otherwise set forth in clause (c) below, this
Agreement may be modified, altered, supplemented or amended if: (x) all the
Members execute and deliver a written agreement with respect to such amendment;
and (y) so long as any Obligation is outstanding, the Rating Agency Condition is
satisfied.
(b) Subject to Section 8.4 and except as is otherwise set
forth in clause (c) below, any Series Supplement may be modified, altered,
supplemented or amended if: (x) all the Members execute and deliver a written
agreement with respect to such amendment; and (y) so long as any Obligation
issued in respect of the applicable Series Supplement is outstanding, the Rating
Agency Condition is satisfied.
(c) This Agreement may be modified, altered, supplemented
or amended without satisfying the requirements of clause (a) or (b) above: (i)
to cure any ambiguity, (ii) to convert or supplement any provision herein in a
manner consistent with the intent of this Agreement and the other Transaction
Documents, and (iii) to cause the issuance of any Variable Funding Certificate
pursuant to a Series Supplement in accordance with Section 7.4 of this
Agreement.
SECTION 16.2 Headings. The titles of Sections of this
Agreement are for convenience or reference only and shall not define or limit
any of the provisions of this Agreement.
SECTION 16.3 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES THEREOF.
SECTION 16.4 Separability of Provisions. Each provision of
this Agreement shall be considered separable 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.
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
14
SECTION 16.5 Further Assurances. The Members shall execute and
deliver such further instruments and do such further acts and things as may be
required to carry out the intent and purposes of this Agreement.
SECTION 16.6 Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original of this
Agreement. Executed counterparts may be delivered electronically.
SECTION 16.7 Assignment; Third Party Beneficiaries. The
parties hereto acknowledge and agree that the obligation of each holder of a
Variable Funding Certificate of any Series to make capital contributions
pursuant to its Variable Funding Certificate, this Agreement and the related
Series Supplement and all other rights of the Company under this Agreement and
the related Series Supplement may be pledged from time to time by the Company to
creditors of the Company or its assigns related to any Securitized Pool to
secure the Company's or its assigns' obligations to such creditors. In
connection with the exercise of remedies against the Company, any such creditor
may request each holder of a Variable Funding Certificate of the related Series
to make capital contributions pursuant to Article X hereof and the related
Series Supplement without further consent of such Variable Funding
Certificateholder or the Company. Nothing in this Agreement or in any Variable
Funding Certificate, whether express or implied, shall be construed to give to
any other Person (other than the Parties hereto and the Indemnified Parties) any
legal or equitable right, remedy or claim under or in respect of this Agreement
or such Variable Funding Certificate, or any covenants, conditions or provisions
contained herein or therein.
[Signature Follows]
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
15
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, has duly executed this Agreement as of the date first above
written.
INITIAL MEMBER:
GENERAL ELECTRIC CAPITAL SERVICES,
INC.
By: __________________________________
Name:
Title:
INITIAL INDEPENDENT MANAGER:
The undersigned, pursuant to Section 8.3 hereof, hereby executes this
counterpart to this Agreement and accepts his or her appointment as an
Independent Manager in accordance with the Agreement.
By: ___________________________
Name: _________________________
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
16
DEFINITIONS ADDENDUM
TO THE
LIMITED LIABILITY COMPANY AGREEMENT
"Act" is defined in the Preliminary Statement.
"Affiliate" means, with respect to any Person, any Person or
group of Persons acting in concert in respect of the Person in question that,
directly or indirectly, controls or is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
with correlative meaning, the terms "controlled by" and "under common control
with") as used with respect to any Person or group of Persons, shall mean the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Limited Liability Company Agreement,
including any Series Supplement, as each may be amended or supplemented from
time to time.
"Amounts Available for Distribution" with respect to each
Series of Variable Funding Certificates, shall have the meaning assigned to such
term in the related Series Supplement.
"Assets" is defined in Section 4.1.
"Bankruptcy" means, with respect to any Person, if such Person
(i) makes an assignment for the benefit of creditors, (ii) files a voluntary
petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has
entered against it an order for relief, in any bankruptcy or insolvency
proceedings, (iv) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against it in any proceeding of this nature, (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of the Person
or of all or any substantial part of its properties, or (vii) if 120 days after
the commencement of any proceeding against the Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation, if the proceeding has not been dismissed, or if
within 90 days after the appointment without such Person's consent or
acquiescence of a trustee, receiver or liquidator of such Person or of all or
any substantial part of its properties, the appointment is not vacated or
stayed, or within 90 days after the expiration of any such stay, the appointment
is not vacated. The foregoing definition of "Bankruptcy" is intended to replace
and shall supersede and replace the definition of "Bankruptcy" set forth in
Sections 18[ ]101(1) and 18[ ]304 of the Act.
"Business Day" with respect to each Series of Variable Funding
Certificates, shall have the meaning assigned to such term in the related Series
Supplement.
"Certificate of Formation" means the Certificate of Formation
of CEF Equipment Holding, L.L.C., as amended from time to time.
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
17
"Company" means CEF Equipment Holding, L.L.C., a Delaware
limited liability company.
"Indemnified Party" means a Member (including each holder of a
Variable Funding Certificate), Manager, employee, organizer or agent of the
Company or any officer, agent, shareholder, director, employee or incorporator
of the Initial Member.
"Independent Manager" means a natural person who, for the
five-year period prior to his or her appointment as Independent Manager has not
been, and during the continuation of his or her service as Independent Manager
is not: (i) an employee, director, stockholder, partner or officer of the
Company or any of its Affiliates (other than his or her service as an
Independent Manager of the Company or any limited purpose Affiliate thereof);
(ii) a customer or supplier of the Company or any of its Affiliates; or (iii)
any member of the immediate family of a person described in (i) or (ii).
"Initial Member" has the meaning assigned in the preamble.
"Issuer" has the meaning set forth in Section 4.1(a)(v).
"Manager" is defined in Section 8.1; provided, however, the
term "Manager" shall not include the Independent Manager.
"Material Action" means to consolidate or merge the Company
with or into any Person, or sell all or substantially all of the assets of the
Company (except pursuant to a Transaction Document), or to institute proceedings
to have the Company be adjudicated bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Company or file
a petition seeking, or consent to, reorganization or relief with respect to the
Company 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
its property, or make any assignment for the benefit of creditors of the
Company, or admit in writing the Company's inability to pay its debts generally
as they become due, or take action in furtherance of any such action, or, to the
fullest extent permitted by law, dissolve or liquidate the Company.
"Member" means any Person that is admitted as a member of the
Company in such person's capacity as a member of the Company, in each case for
so long as such Person continues to be a member of the Company; provided,
however, the term "Member" shall not include a Special Member.
"Membership Interest" means the entire limited liability
company interest of a Member in the Company at any particular time (other than
any Variable Funding Certificate), including the right of such Member to any and
all benefits to which a Member may be entitled as provided in this Agreement
with respect to such Membership Interest, together with the obligations of such
member to comply with all the terms and provisions of this Agreement. A
Membership Interest is an interest that relates to the assets of the Company
generally and not any Series.
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
18
"Obligations" shall mean any Securities and the indebtedness,
liabilities and obligations issued under or in connection with any
Securitization Agreement, the other Transaction Documents or any related
document in effect as of any date of determination.
"Officer" means an officer of the Company described in Section
8.5.
"Outstanding Unfunded Capital Commitment" with respect to each
Series of Variable Funding Certificates, shall have the meaning assigned to such
term in the related Series Supplement.
"Payment Date" with respect to each Series of Variable Funding
Certificates, shall have the meaning assigned to such term in the related Series
Supplement.
"Percentage Interest" with respect to each Variable Funding
Certificate, the percentage set forth on the face of such Variable Funding
Certificate.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock company,
trust, association, joint venture, government or any agency or political
subdivision thereof or any other entity of whatever nature.
"Rating Agency" means any nationally recognized statistical
rating organization currently rating any Security.
"Rating Agency Condition" means, with respect to any action,
that each Rating Agency shall have been given ten days prior notice thereof and
that each of the Rating Agencies shall have notified the Company in writing that
such action will not result in a reduction or withdrawal or qualification of the
then current rating by such Rating Agency of any of the Securities.
"Securitization Agreement" has the meaning set forth in
Section 4.1(a)(vii).
"Securitized Pool" shall have the meaning assigned to such
term in Section 7.4 hereof.
"Security" means any bond, note, certificate or other security
issued by the Company or an Issuer and secured primarily by or evidencing a
beneficial ownership interest in any Assets.
"Series" shall have the meaning assigned to such term in
Section 7.4 hereof.
"Series Supplement" means, with respect to each Series of
Variable Funding Certificate, the series supplement executed by the Manager and
the initial holder(s) of the Variable Funding Certificates in such Series
pursuant to Section 7.4 hereof.
"Special Member" means, upon such person's admission to the
Company as a member of the Company pursuant to Section 7.3, a person acting as
Independent Manager, in such person's capacity as a member of the Company. A
Special Member shall only have the rights and duties expressly set forth in this
Agreement.
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
19
"Transaction Documents" means this Agreement, each Series
Supplement, if any, any Securitization Agreement and all documents and
certificates contemplated thereby or delivered in connection therewith.
"Transfer" means, as a noun, any transfer, sale, assignment,
exchange, charge, pledge, gift, hypothecation, conveyance, encumbrance or other
disposition whether direct or indirect, voluntary or involuntary, by operation
of law or otherwise and, as a verb, directly or indirectly, voluntarily or
involuntarily, by operation of law or otherwise, to transfer, sell, assign,
exchange, charge, pledge, give, hypothecate, convey, encumber or otherwise
dispose of.
"Variable Funding Capital Commitment" with respect to each
Series of Variable Funding Certificates, shall have the meaning assigned to such
term in the related Series Supplement.
"Variable Funding Certificate" shall have the meaning assigned
to such term in Section 7.4 hereof.
"Variable Funding Certificate Capital Contribution Request"
shall mean any written request, either substantially in the form of Exhibit A
hereto, delivered by the Company to any holder of a Variable Funding Certificate
of any Series, or made as described in Section 16.8.
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
20
EXHIBIT A
FORM OF VARIABLE FUNDING CERTIFICATE CAPITAL CONTRIBUTION REQUEST
CEF Equipment Holding, L.L.C.
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
General Electric Capital Services, Inc.
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: [ ]
Facsimile: [ ]
Re: CEF Equipment Holding, L.L.C. (the "Company")
Variable Funding Certificate, Series [ ]
Ladies and Gentlemen:
This notice confirms the Company's request for a capital contribution
on your Variable Funding Certificate, Series [__], pursuant to Section 10.2 of
the Amended and Restated Limited Liability Company Agreement, dated as of
September 25, 2003 (the "Limited Liability Company Agreement"), and the Series
Supplement thereto related to your Variable Funding Certificate, Series [__], in
the amount of $____________. Please contribute the requested amount as set forth
in Section 10.2 of the Limited Liability Company Agreement.
Please acknowledge receipt of this notice by executing below and
returning to the above-listed address.
Very truly yours,
CEF Equipment Holding, L.L.C., with respect to the
Series 2003-1 Variable Funding Certificates
By: _____________________________________
Name:
Title:
ACKNOWLEDGED:
General Electric Capital Services, Inc.
By: ____________________________________
Name:
Title:
Amended and Restated Limited
Liability Company Agreement
of CEF Equipment Holding, L.L.C.
21
SCHEDULE I
Officer Title
Xxxx X. Xxxxxxx President and Principal Executive Officer
Xxxxxxxxxxx Xxxxxx Vice President and Principal Financial Officer
Xxxx X. Xxxxxxxx Vice President and Principal Accounting Officer
Xxxxxxx X. Xxxxxx Vice President and Secretary
Xxxxxxx X. Xxxxxx Vice President and Assistant Secretary
Xxxxx X. Xxxxxx Vice President and Assistant Secretary
Xxxxxxx Xxxxxxx Vice President and Principal Servicing Officer
Xxxx X. Xxxxxxxxxx Vice President
Xxxxxxx X. Xxxxx Vice President
Xxxxxx X. Xxxxxxx Vice President
Xxxxxxx X. Xxxxxx Vice President
Amended and Restated Limited Liability
Company Agreement
of CEF Equipment Holding, L.L.C.
22
