Exhibit 3(b)
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CEF EQUIPMENT HOLDING, L.L.C.
(A DELAWARE LIMITED LIABILITY COMPANY)
Dated August [__], 2002
First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
CEF EQUIPMENT HOLDING, L.L.C.
FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT dated
as of August [__], 2002, adopted by General Electric Capital Services, Inc. as
the sole equity member (the "Initial Member").
Preliminary Statement
The Initial Member has 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 hereby adopts the following Amended and Restated
Limited Liability Company Agreement which shall amend and restate the Limited
Liability Company Agreement dated June 17, 2002 (the "Original Agreement") 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 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 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.
ARTICLE III
Section 3.1 Name. The name of the Company is CEF Equipment Holding, L.L.C.
ARTICLE IV
Section 4.1 Purposes. The purpose to be conducted or promoted by the Company is
to engage in the following activities:
(a) (i) to purchase, accept capital contributions of or otherwise
acquire (A) equipment loan and lease contracts, including rights to
payment of any interest, finance charges or fees and any other rights with
respect thereto (the "Receivables"), (B) security interests in the
equipment financed by the Receivables (the "Financed Equipment") and any
accessions thereto; (C) the rights to proceeds with respect to the
Receivables from claims on insurance policies covering the Financed
Equipment and any
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First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
rights of a seller of the Receivables in any rebates of premiums and other
amounts relating to insurance policies and other items financed under the
Receivables; (D) any property that shall have secured a Receivable; (E)
any rights of a seller of the Receivables in any documents or instruments
or other property appurtenant or relating to the Receivables; and (F) any
and all proceeds of the foregoing (the property described in clauses (B)
through (F) above being called the "Related Assets");
(ii) to own, hold, service, sell, assign, transfer, pledge, grant
security interests in or otherwise exercise ownership rights with respect
to the Receivables and Related Assets;
(iii) to issue and sell one or more series of Securities;
(iv) to act as settlor or depositor of trusts or other entities or
to own equity interests in other limited liability companies (whose
purposes are restricted to those set forth in this Section 4(a)), each of
which is formed to issue Securities (each, an "Issuer");
(v) to acquire, own, hold, transfer, assign, pledge, sell and
otherwise deal with any interests in an Issuer or Securities issued by an
Issuer;
(vi) 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, 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 Receivables and Related Assets or the
issuance and sale of any Securities (each, a "Securitization Agreement"),
and to perform its obligations under each Securitization Agreement to
which it is a party;
(vii) to establish any reserve account, spread account or other
credit or cash flow enhancement for the benefit of Securities issued by
the Company or any Issuer and to loan, transfer or otherwise invest any
proceeds from Receivables and Related Assets and any other income as
determined by the Managers;
(viii) to purchase financial guaranty insurance policies for the
benefit of any Security issued by the Company or any Issuer;
(ix) to enter into any interest rate or basis swap, cap, floor or
collar agreements, currency exchange agreements or similar hedging
transactions relating to any Receivables and Related Assets or for the
benefit of any Security issued by the Company or any Issuer;
(x) to prepare, execute and file with the Securities and Exchange
Commission registration statements, including a prospectus and forms of
prospectus supplements, relating to Securities to be issued on a delayed
or continuous basis;
(xi) to prepare private placement memorandums relating to Securities
to be offered and issued privately;
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First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
(xii) for federal, state or local tax purposes, to serve as "General
Partner" or Member of any Issuer;
(xiii) to engage in any lawful act or activity and to exercise any
powers permitted to limited liability companies organized under the laws
of the State of Delaware that are related or incidental to and necessary,
convenient or advisable for the accomplishment of the above-mentioned
purposes; and
(xiv) to issue Membership Interests, on the terms and conditions set
forth herein.
(b) The Company, by or through the Initial Member, or any Officer or
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 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 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 Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxxxx, 00000.
ARTICLE VII
Section 7.1 Admission of Members. (a) By execution of the Original
Agreement, the Initial Member is hereby admitted 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 Initial Member may issue additional Membership Interests 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.
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First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
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 Upon the occurrence of any event that causes the Initial
Member to cease to be a member of the Company (other than upon an assignment by
the Initial Member of all of its limited liability company interest in the
Company and the admission of the transferee pursuant to Articles VII and XII),
each person acting as an Independent Manager pursuant to Section 8.3 shall,
without any action of any Person and simultaneously with the Initial 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, the Special Members shall automatically cease to
be members of the Company upon the admission to the Company of a substitute
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 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 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.
ARTICLE VIII
Section 8.1 Management. Management of the Company shall initially be
vested in the Managers set forth on Schedule A (each a "Manager"). Each Manager
shall perform, on behalf of the Company, duties 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 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.
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First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
Section 8.3 Independent Manager. As long as any Obligation is
outstanding, the Initial Member shall cause the Company at all times to have at
least one Independent Manager who will be appointed by the Initial Member. To
the fullest extent permitted by law, including Section 18-1101(c) of the Act, it
is intended that the Independent Managers 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. All
right, power and authority of the Independent Managers shall be limited to the
extent necessary to exercise 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 serve as trustee in bankruptcy for any Affiliate of the Company. The
initial Independent Manager of the Company is Xxx 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 Initial Member 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, 11.1, 12.1, 13.1, 14.1,
15.1, 16.2 or 16.4 or the Definitions Addendum of this Agreement without the
unanimous written consent of the Managers (including all Independent Managers).
Subject to this Section 8.4, the Initial Member reserves 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 Initial Member, the
Managers, any Officer or any other Person, neither the Initial Member nor the
Managers nor any Officer nor any other Person shall be authorized or empowered,
nor shall they permit the Company, without the prior written consent of the
Initial Member and a majority of the Managers (including all Independent
Managers), to take any Material Action, provided, however, that the 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.
(d) The Managers and the Initial Member 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 Managers 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. The Managers also shall cause the
Company to:
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First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
(i) maintain its own books and records and bank accounts separate
from the Initial Member or any other person;
(ii) at all times hold itself out to the public and all other
Persons as a legal entity separate from the Initial Member and any other
Person;
(iii) file its own tax returns, if any, as may be required under
applicable law, to the extent (1) not part of a consolidated group filing
a consolidated return or returns or (2) not treated as a division for tax
purposes of another taxpayer, and pay any taxes so required to be paid
under applicable law;
(iv) except as contemplated by the Transaction Documents, not
commingle its assets with assets of the Initial Member or any other
Person;
(v) conduct its business in its own name and strictly comply with
all organizational formalities to maintain its separate existence;
(vi) maintain separate financial statements;
(vii) pay its own liabilities only out of its own funds;
(viii) maintain an arm's length relationship with its Affiliates and
the Initial Member;
(ix) pay the salaries of its own employees, if any;
(x) not hold out its credit or assets as being available to satisfy
the obligations of others;
(xi) to the extent its office is located in the offices of any
Affiliate pay fair market rent for its office space located therein, and
otherwise allocate fairly and reasonably any overhead expenses shared with
any Affiliate, and not engage in any business transaction with any
Affiliate unless on an arm's-length basis;
(xii) use separate stationery, invoices and checks;
(xiii) except as contemplated by the Transaction Documents, not
pledge its assets for the benefit of any other Person or make any loans or
advances to any other Person;
(xiv) correct any known misunderstanding regarding its separate
identity;
(xv) maintain adequate capital in light of its contemplated business
purpose, transactions and liabilities;
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First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
(xvi) cause its Managers to meet at least annually or act pursuant
to written consent and keep minutes of such meetings and actions and
observe all other Delaware limited liability company formalities;
(xvii) not acquire any securities of the Initial Member; and
(xviii) cause the Managers, Officers, agents and other
representatives of the Company to act at all times with respect to the
Company consistently and in furtherance of the foregoing and in the best
interests of the Company.
Failure of the Company, or the Initial Member or the Managers on behalf of the
Company, to comply with any of the foregoing covenants or any other covenants
contained in this Agreement shall not affect the status of the Company as a
separate legal entity or the limited liability of the Initial Member or the
Managers.
(e) So long as any Obligation is outstanding, the Managers shall not
cause or permit the Company to:
(i) except as contemplated by the Transaction Documents,
guarantee or become obligated for the debts of any Person, including
any Affiliate;
(ii) engage, directly or indirectly, in any business other
than the actions required or permitted to be performed under Section
4.1, the Transaction Documents or this Section 8.4;
(iii) incur, create or assume any indebtedness other than as
expressly permitted hereunder and under the Transaction Documents;
(iv) make or permit to remain outstanding any loan or advance
to, or own or acquire any stock or securities of, any Person, except
that the Company may invest in those investments permitted under the
Transaction Documents and may make any advance required or expressly
permitted to be made pursuant to any provisions of the Transaction
Documents and permit the same to remain outstanding in accordance
with such provisions;
(v) to the fullest extent permitted by law, engage in any
dissolution, liquidation, consolidation, merger, asset sale or
transfer of ownership interests other than such activities as are
expressly permitted pursuant to any provision of the Transaction
Documents; or
(vi) except as contemplated by Section 4.1(a), form, acquire
or hold any subsidiary (whether corporate, partnership, limited
liability company or other).
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
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First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
Managers and shall consist of at least a President, a Secretary and a Treasurer.
The Managers 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 Managers shall choose a President, a Secretary and a Treasurer. The Managers
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
Managers. The salaries of all Officers and agents of the Company shall be fixed
by or in the manner prescribed by the Managers. 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 Managers. Any vacancy occurring in any office of the Company
shall be filled by the Managers. The initial Officers of the Company designated
by the Initial Member are listed on Schedule A hereto.
(b) President. The President shall be the principal executive
officer of the Company, shall preside at all meetings of the Managers, 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 Managers 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 Managers, 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 President. The Vice Presidents, if any, shall perform such other duties and
have such other powers as the Managers 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 Managers and record all the
proceedings of the meetings of the Company and of the Managers 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
Managers, and shall perform such other duties as may be prescribed by the
Managers 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 Managers (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 Managers 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
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First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
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 Managers. The Treasurer shall disburse the funds of the
Company as may be ordered by the Managers, taking proper vouchers for such
disbursements, and shall render to the President and to the Managers, at its
regular meetings or when the Managers 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 Managers (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 Managers 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 Managers to some other Officer or agent of the
Company.
ARTICLE IX
Section 9.1 Initial Capital Contributions. The initial cash capital
contribution to be made by the Initial Member is $10,000.
ARTICLE X
Section 10.1 Additional Contributions. The Members shall have no
obligation to make any additional capital contribution to the Company after the
date hereof, but the Initial Member may elect to do so from time to time.
ARTICLE XI
Section 11.1 Distributions. Distributions shall be made to the
Members at the times and in the aggregate amounts determined by the Initial
Member, subject to the limitation of Section 18-607 of the Act.
Section 11.2 Distribution upon Withdrawal. Upon withdrawal, 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.
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 be null and void and of no force or
effect whatsoever.
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First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
(b) The Initial Member shall admit a transferee of a Member's
Membership Interest to the Company 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 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.
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. No Member or any Manager, agent,
shareholder, director, employee or incorporator of any Member will be liable for
the debts, obligations and liabilities of the Company or any other Member,
whether arising in contract, tort or otherwise, which debts, obligations and
liabilities shall be solely the debts, obligations and liabilities of the
Company or such other Member, as applicable.
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 (i) that the Indemnified Party's acts or
omissions were in bad faith or involved intentional misconduct or a knowing
violation of law 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.
(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 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.
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First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
(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 XIV shall survive any termination of this Agreement
and the dissolution of the Company.
ARTICLE XV
Section 15.1 Duration and Dissolution. (a) Subject to Section 8.4
and the following sentence, 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 business of 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 or insolvency 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 business of 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 or insolvency 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.
(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.
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First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
(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 Bankruptcy. Except by the unanimous consent of all
Members and Managers, and if the Company has a board of directors then by the
unanimous consent of all directors, the Company shall not file a voluntary
petition in bankruptcy or otherwise seek relief under Title 11 of the United
States Code or any successor statute thereto, or under any similar applicable
state law.
Section 16.2 Amendments. Subject to Section 8.4, this Agreement may
be modified, altered, supplemented or amended pursuant to a written agreement
executed and delivered by the Initial Member. Notwithstanding anything to the
contrary in this Agreement, so long as any Obligation is outstanding, this
Agreement may not be modified, altered, supplemented or amended unless the
Rating Agency Condition is satisfied:
(a) except: (i) to cure any ambiguity or (ii) to convert or
supplement any provision in a manner consistent with the intent of this
Agreement and the other Transaction Documents, and
(b) without the consent of a majority of the holders of Debt
Obligations except: (i) to cure any ambiguity or (ii) to convert or
supplement any provision in a manner consistent with the intent of this
Agreement and the Transaction Documents.
Section 16.3 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 16.4 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 16.5 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.
Section 16.6 Further Assurances. The Initial Member 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.
13
First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
Section 16.7 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.
[Signature Follows]
14
First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
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: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name:
Title:
15
First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
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 actions amending, modifying or supplementing this Limited
Liability Company Agreement.
"Certificate of Formation" means the Certificate of Formation of CEF
Equipment Holding, L.L.C., as amended from time to time.
"Company" means CEF Equipment Holding, L.L.C., a Delaware limited
liability company.
"Debt Obligation" means, as of any date of determination, debt
securities issued by and loans in respect of money borrowed by the Company.
"Financed Equipment" has the meaning set forth in Section 4(a)(i).
"Indemnified Party" means a Member, 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 Affiliate whose purposes are restricted to those substantially
similar to those in Section 4); (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(a)(iv).
"Manager" is defined in Section 8.1.
16
First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
"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 each case for so long as such Person continues to be a member of the
Company.
"Membership Interest" means the entire limited liability company
interest of the Initial Member in the Company at any particular time, including
the right of such Initial Member to any and all benefits to which a Member may
be entitled as provided in this Agreement, together with the obligations of such
member to comply with all the terms and provisions of this Agreement.
"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.
"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.
"Receivables" has the meaning set forth in Section 4(a)(i).
"Related Assets" has the meaning set forth in Section 4(a)(i).
"Security" means any bond, note, certificate or other security
issued by the Company or an Issuer and secured primarily by or evidencing
beneficial ownership interest in the Receivables and Related Assets.
17
First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
"Securitization Agreement" has the meaning set forth in Section
4.1(a)(vi).
"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.
"Transaction Documents" means this Agreement, any Securitization
Agreement and all documents and certificates contemplated thereby or delivered
in connection therewith.
"Transfer" means (i), 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 (ii), 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.
18
First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
SCHEDULE A
Officers
Officer Title
------- -----
Xxxx Xxxxxxx President
Xxxx Xxxxxxxx Treasurer
Xxxxx Xxxxxx Chief Financial Officer
Xxxxxx Xxxxxx-Xxxxx Secretary and Vice President
Xxx Xxxxxxx Vice President
Xxxxxxx Xxxxxx Vice President
Xxxxxx Xxxx Vice President
Xxxx Register Vice President
Xxx Xxxxxx Vice President
Xxxxx Xxxxxx Vice President
First Amended and Restated
Limited Liability Company Agreement
of CEF Equipment Holding, L.L.C.
