LIMITED LIABILITY COMPANY AGREEMENT OF GECB Equipment Funding, LLC (A DELAWARE LIMITED LIABILITY COMPANY) Dated as of November 16, 2012 GECB EQUIPMENT FUNDING, LLC
LIMITED LIABILITY COMPANY AGREEMENT
OF
GECB Equipment Funding, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
Dated as of November 16, 2012
LIMITED LIABILITY COMPANY AGREEMENT dated as of November 16, 2012, adopted by GE Capital Commercial Inc., as a member (the “Initial Member”).
Preliminary Statement
The Initial Member desires to form 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”).
Accordingly, the Initial Member 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 November 16, 2012 by the filing of the Certificate of Formation, substantially in the form of Exhibit A, 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. ▇▇▇▇ ▇▇▇▇▇▇ 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 the Initial Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act. The Initial 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.
ARTICLE III
Section 3.1 Name. The name of the Company is GECB Equipment Funding, LLC.
ARTICLE IV
Section 4.1 Purpose and Limitations on Activities. The purpose to be conducted or promoted by the Company is to engage in the following activities:
(i) to purchase, accept capital contributions of or otherwise acquire (A) equipment loan and lease contracts (or beneficial interest in such 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 or ownership or beneficial ownership of the equipment related to the Receivables (collectively, the "Equipment") and any accessions thereto; (C) the rights to proceeds with respect to the Receivables from claims on insurance policies covering the Equipment and any 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 and, if applicable, the related Equipment in any documents or instruments or other property appurtenant or relating to the Receivables; and (F) any and all proceeds of the foregoing, including any proceeds received from the sale, re-lease, continued use or other disposition of the Equipment acquired by the Company (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 4.1), 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;
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(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;
(xii) for federal, state or local tax purposes, to serve as general partner, Member or owner trustee of any Issuer, as applicable;
(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.
Section 4.2 Authority. The Company, by or through the Initial Member, or any Officer or Manager on behalf of the Company, may enter into and perform under 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 c/o The Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, in the City of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇. 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.
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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, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, in the City of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
ARTICLE VII
Section 7.1 Admission of Members.
(a) By execution of this Agreement, the Initial Member is hereby admitted as a Member of the Company and shall have a Membership Interest in the Company including, without limitation, 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.
Section 7.2 Initial Member. The name and the address of the Initial Member of the Company is as follows:
GE Capital Commercial Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Section 7.3 Special
Members. 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
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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 I (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.
Section 8.3 Independent Managers. As long as any Obligation is outstanding, the Initial Member shall cause the Company at all times to have at least one (1) 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, and its respective creditors (including any secured parties under any Securitization Agreements or other Transaction Documents) and, to the fullest extent permitted by law, shall have no duty to consider the interests of the Initial Member, in acting or otherwise voting on the matters referred to in Section 8.4, and, to the fullest extent permitted by law shall have no duties to consider the interests of any Member. 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; provided, that, any successor or additional Independent Manager shall be acceptable to each person acting as indenture trustee in connection with any outstanding series of Securities. 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. Notwithstanding anything to the contrary in this Agreement, in no event shall any Independent Manager be removed or expelled except for cause; provided, that an Independent Manager’s unwillingness to approve a Bankruptcy of the Company or any other Material Action shall not constitute “cause” for removal or expulsion of such 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
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provided
in this Agreement, 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇. Any appointment of a successor or additional Independent
Manager not in strict compliance with this Section 8.3 shall be void and of no effect.
In considering whether to give or withhold written consent to the Bankruptcy of the Company pursuant to Section 8.4(c), each Independent Manager, with the consent of the Initial Member (which consent the Initial Member hereby gives and believes to be in the best interest of the Initial Member and the Company), shall consider (i) the interests of secured parties under any Securitization Agreements or other Transaction Documents in addition to the interests of the Company, (ii) whether the Company is insolvent and (iii) whether resort to Bankruptcy is necessary to address the Company’s insolvency or similar financial problems and/or to protect the interests of (or to provide material benefit to) such parties. No Independent Manager shall have any duty to give such written consent to the Bankruptcy of the Company if such Independent Manager shall not have been furnished (at the expense of the Company) a letter from an independent accounting firm (or similar valuation firm) of national reputation stating that in the opinion of such firm the Company is then insolvent or suffering from similar financial problems. No Independent Manager shall be personally liable to any Member on account of such Independent Manager's good faith reliance on the provisions of this Section 8.3, and no Member shall have any claim for breach of fiduciary duty or otherwise against any Independent Manager for withholding its consent to any such Bankruptcy.
Section 8.4 Limitation 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); provided, however, that the Managers may not vote on, or authorize the taking of, any such action unless there is at least one (1) Independent Manager appointed pursuant to, and in compliance with, each of the provisions of this Agreement and then serving in such capacity. 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 (1) Independent
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Manager appointed pursuant to, and in compliance with, each of the provisions of this Agreement and then serving
in such capacity, and any taking or purported taking of any Material Action that is not in strict compliance with this Section
8.4(c) shall be void and of no effect.
(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:
(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;
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(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;
(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
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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(iv), form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other).
Section 8.5 Officers.
(a) Officers. The Officers of the Company shall consist of at least a President, a Secretary and a Treasurer. The initial Officers of the Company are listed on Schedule I hereto. Additional or successor Officers of the Company shall be chosen by the Managers. Any number of offices may be held by the same person. The Managers may appoint such other Officers and agents as it shall deem necessary or advisable, including without limitation one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers, 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. Any Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Managers. Each Officer shall hold office until the earlier to occur of his or her resignation or removal from office or the next annual meeting of Managers (or written consent in lieu of an annual meeting) at which Officers are elected or appointed. Any vacancy occurring in any office of the Company shall be filled by the Managers.
(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 (1) 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
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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 (1), 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 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 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 require, 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 (1), 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 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 promptly hereafter 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 Managers, subject to the limitations of the Act or other applicable laws.
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.
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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.
(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. Except as required by the Act, no Member or any Manager, agent, shareholder, director, employee or incorporator of any Member 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 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 or any Member 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.
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(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 (and 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 or omissions were committed in bad faith or involved intentional misconduct as 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.
(c) Notwithstanding anything else contained in this Agreement, the indemnity obligations of the Company under Section 14.1 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 ninety (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.
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(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.
(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, 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.
(a) Subject to Section 8.4 and except as otherwise set forth in clause (b) below, this Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Initial Member; provided, that so long as any Obligation is outstanding, this Agreement may not be modified, altered, supplemented or amended unless the Rating Agency Condition is satisfied.
(b) This Agreement may be modified, altered, supplemented or amended without satisfying the requirement of clause (a) 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; or (iii) with the consent of a majority of the holders of Debt Obligations.
Without limiting the generality of the foregoing, any modification, alteration, supplement or amendment to Sections 8.1, 8.3, 8.4, 16.2 or Article XI of this Agreement (or any other modification, alteration, supplement or amendment to this Agreement that would have the effect of modifying, altering, supplementing or amending the rights, duties or obligations of any Person under such Sections or Article) shall be deemed to be “material” for purposes of this Section 16.2.
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.
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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 Severability of Provisions. Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.
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.
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]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the date first above written.
GE
Capital Commercial Inc.,
as Initial Member
By: /s/ ▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇
▇▇▇▇▇▇▇
Title: Chief Financial Officer
| S-1 |
Acknowledged and Agreed:
▇▇▇▇▇ ▇. ▇▇▇▇▇
as Independent Manager
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Independent Manager
| S-2 |
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, as amended from time to time.
“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 one hundred and twenty (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 ninety (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 ninety (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.
“Certificate of Formation” means the Certificate of Formation of the Company, as filed with the Secretary of State of the State of Delaware on November 16, 2012, or as amended, restated and supplemented, from time to time.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, and Treasury Regulations promulgated thereunder.
“Company” means GECB Equipment Funding, LLC, a Delaware limited liability company.
| A-1 |
“Debt Obligation” means, as of any date of determination, debt securities issued by the Company and loans with respect to money borrowed by the Company.
“Equipment” is defined in Section 4.1(i).
“Indemnified Party” means a Member, Manager, employee, organizer or agent of the Company or any officer, agent, shareholder, director or employee of any Member or Manager.
"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 4.1); (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.
“Manager” is defined in Section 8.1.
"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 the Initial Member and 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 a Member in the Company at any particular time, including the right of a 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, together with all 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.
| A-2 |
"Officer" means an officer of the Company described in Section 8.5.
“Person” means an individual, partnership, corporation, trust (including a business trust), limited liability company, joint stock company, 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 rating any Security at the time of determination.
“Rating Agency Condition” means with respect to any action, that the Company (i) shall have given prior notice as directed by such Rating Agency and, (ii) to the extent such Rating Agency in the customary course of its business furnishes written notice concerning such actions, shall have obtained a written notification from such Rating Agency that such action will not result in the reduction or withdrawal of the-then current rating by such Rating Agency of any of the Securities.
“Receivables” is defined in Section 4.1(i).
“Related Assets” is defined in Section 4.1(i).
"Security" or “Securities” 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.
"Securitization Agreement" has the meaning set forth in Section 4.1(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, the Related Documents (as defined in the applicable indenture) 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.
| A-3 |
EXHIBIT A
CERTIFICATE OF
FORMATION
OF
GECB Equipment
Funding, LLC
This Certificate of Formation of GECB Equipment Funding, LLC, dated as of November 16, 2012, has been duly executed and is being filed by ▇▇▇▇ ▇▇▇▇▇▇, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del.C.§18-101, et seq.).
| 1. | The name of the limited liability company is GECB Equipment Funding, LLC (the “LLC”). |
| 2. | The address of the registered office of the LLC in the State of Delaware is Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇. The name of the registered agent of the LLC at such address is The Corporation Trust Company. |
| 3. | This Certificate of Formation shall be effective as of its filing. |
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of the LLC this 16th day of November, 2012.
By:_____________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Person
| Exh. A-1 |
SCHEDULE I
| Name | Title |
| ▇▇▇ ▇▇▇▇▇ | Manager, Principal Executive Officer and President |
| ▇▇▇ ▇▇▇▇▇▇▇ | Manager, Principal Financial Officer, Principal Accounting Officer and Chief Financial Officer |
| ▇▇▇▇▇ ▇. ▇▇▇▇▇ | Independent Manager |
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
Treasurer |
| ▇▇▇ ▇▇▇▇ | Vice President – Capital Markets |
| ▇▇▇▇ ▇▇▇▇▇▇ | Vice President – Tax |
|
▇▇▇ ▇▇▇▇▇▇ |
Secretary |
| ▇▇▇ ▇▇▇▇▇▇▇ | Assistant Secretary |
| Sch. I-1 |