EXHIBIT 3.3
LIMITED LIABILITY COMPANY AGREEMENT
OF
IKON RECEIVABLES FUNDING, LLC
This Limited Liability Company Agreement, dated and effective
as of October 9, 2001 (the "Agreement"), is adopted by IKON Receivables-2, LLC,
a Delaware limited liability company ("IKON Receivables-2"), as the sole member
(in such capacity, the "Sole Member"), and IKON Receivables Funding, Inc., a
Delaware corporation, as the manager (in such capacity, the "Manager"). Each
capitalized term used herein and not defined shall have the meaning given to
such term in Article II of this Agreement.
WHEREAS, the Certificate of Formation of the Company was filed
with the Secretary of State of the State of Delaware on October 9, 2001 (which
filing is hereby approved and ratified in all respects);
WHEREAS, the Sole Member and the Manager hereby wish to adopt
the Agreement.
NOW, THEREFORE, the Sole Member and the Manager hereby adopt
the following:
ARTICLE I
FORMATION OF LIMITED LIABILITY COMPANY
Section 1.1. Formation of Limited Liability Company. The Sole
Member has heretofore formed a Delaware limited liability company (the
"Company") pursuant to the Act. The Manager and each person from time to time
serving as an officer or director of the Manager shall be, and hereby is,
designated as an "authorized person" within the meaning of Section 18-204 of the
Act, authorized and empowered to execute certificates to be filed with the
Secretary under the Act. The Sole Member shall be the sole member of the
Company, and the Sole Member's Interest in the Company shall be, and hereby is,
authorized and issued.
Section 1.2. Company Name and Principal Office. The name of
the Company shall be " IKON Receivables Funding, LLC." The Manager shall have
the power at any time to change the name of the Company. The principal business
office of the Company shall be ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇. The business of the Company may also be conducted at such additional
place or places as the Sole Member may determine.
Section 1.3. Office of and Agent for Service of Process. The
registered office of the Company in Delaware shall be maintained at The
Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The
Company's agent for service of process on the Company at such address shall be
The Corporation Trust Company. The Manager shall have the power and the
authority, and is hereby authorized and empowered to change, at any time and
from time to time, the location of such registered office and/or such registered
agent upon compliance with the Act.
Section 1.4. Term of Company. The Company shall be formed and
commence on the date the certificate of formation is filed with the Secretary
(the "Effective Date"). The Company shall have a perpetual existence as a
separate legal entity until cancellation of the Company's certificate of
formation.
Section 1.5. Purpose of Company. The purpose to be conducted
or promoted by the Company is to engage in the following activities:
(a) prepare and file with the Securities and Exchange
Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as
herein defined), on behalf of the Company, (i) a Registration Statement
(the "1933 Act Registration Statement"), including all pre-effective
and post-effective amendments thereto, relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the
lease-backed notes of the Company, (ii) any preliminary prospectus or
prospectus or supplement thereto relating to the lease-backed notes of
the Company required to be filed pursuant to the 1933 Act, and (ii) a
Registration Statement on an appropriate form (the "1934 Act
Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the
lease-backed notes of the Company under the Securities Exchange Act of
1934, as amended;
(b) file and execute on behalf of the Company, such
applications, reports, surety bonds, irrevocable consents, appointments
of attorney for service of process and other papers and documents that
shall be necessary or desirable to register the lease-back notes of the
Company under the securities or "blue sky" laws of such jurisdictions
as the Manager, on behalf of the Company, may deem necessary or
desirable;
(c) execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the lease-backed
notes of the Company;
(d) execute, deliver and perform on behalf of the Company
an underwriting or purchase agreement with one or more underwriters or
purchasers relating to the offering of the lease-back notes of the
Company;
(e) enter into, perform and carry out contracts of any
kind, including, without limitation, contracts with any Person
affiliated with the Member, necessary to, in connection with,
convenient to, or incidental to the accomplishment of the purposes of
the Company;
(f) to purchase or acquire from any other subsidiary of
IKON Office Solutions, Inc. any right to payment, whether constituting
an account, chattel paper instrument or general intangible and certain
related property (other than equipment) and
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other related rights and assets, and beneficial interests in any or all
of the foregoing (collectively, the "Lease Receivables");
(g) to acquire, own, hold, service, lease, re-lease,
transfer, sell, assign, pledge, invest, lend and otherwise deal with
the Lease Receivables and interests in the Lease Receivables, cash,
marketable securities, deposit or investment accounts, demand notes and
any proceeds or further rights associated with any of the foregoing;
(h) to hold and enjoy all of the rights and privileges as
the owner or otherwise of the Lease Receivables;
(i) to enter into, execute, deliver and perform its
obligations under the Assignment and Servicing Agreement, the Indenture
or any other agreement in connection therewith or otherwise related to
the Lease Receivables (the "Securitization Documents");
(j) to execute, deliver and perform and to issue and sell
notes collateralized by any or all of the Lease Receivables pursuant to
the Indenture;
(k) to enter into and perform obligations under any
intercompany services agreement or management agreement with the
Member, the Manager or any Affiliate of either thereof; and
(l) to engage in any activity and to exercise any powers
permitted to limited liability companies under the laws of the State of
Delaware that are related or incidental to the foregoing and necessary,
convenient or advisable to accomplish the foregoing.
The Company shall have the power and authority, and is hereby
authorized and empowered, to engage in the activities set forth in this Section
1.5, and activities that are required or convenient for the performance of any
of its obligations pursuant to any of the Securitization Documents and other
activities approved in accordance with Section 5.5.
Section 1.6. Address of the Sole Member and Manager. The
addresses of the Sole Member and the Manager are set forth in Exhibit A.
Section 1.7. Exclusivity. No Person may be admitted to the
Company as an additional or substitute member, except as expressly set forth in
this Agreement.
Section 1.8. Authorization. The Company, and the Manager or
any officer of the Company on behalf of the Company, are hereby authorized to
enter into, execute, deliver and perform the Assignment and Servicing Agreement
and other agreements related to the sale and servicing of the Lease Receivables
as the Manager or officer executing such agreement deems necessary and
appropriate and to prepare and file a registration statement on Form S-3 with
the Securities and Exchange Commission and to do all things necessary and
appropriate to the declaration of effectiveness of such Registration Statement
as the Manager and officers directing such preparation and filing deem
necessary, notwithstanding any other provision of this Agreement, the Act or
other applicable law, rule or regulation, and without any further act, vote
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or approval of any person. The foregoing authorization shall not be deemed a
restriction on the power of the Manager or officers of the Company to enter into
other agreements on behalf of the Company.
Section 1.9. Fiscal Year. The Company's fiscal year shall
commence on October 1st and end on September 30th of each year.
ARTICLE II
DEFINITIONS
Section 2.1. Defined Terms.
"Act" means the Delaware Limited Liability Company Act,
Delaware Code Title 6, Sections 18-101 et seq., as amended or supplemented from
time to time.
"Affiliate" when used with respect to a Person shall mean any
other Person controlling, controlled by, or under common control with, such
Person.
"Agreement" shall mean this Limited Liability Company
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"Assignment and Servicing Agreement" shall mean the assignment
and servicing agreements entered into or to be entered into between IOS Capital
(or any other subsidiary of IKON Office Solutions, Inc.) and the Company, as
amended or supplemented from time to time.
"Capital Contributions" shall mean the amount of cash and the
fair market value of property (as determined by the Manager and net of any
liabilities to which such property is subject or which is deemed assumed by the
Company) contributed to the Company by the Sole Member.
"Company" shall mean the limited liability company governed by
this Agreement and formed by the filing of the Certificate of Formation of the
Company with the Secretary.
"IOS Capital" shall mean IOS Capital, Inc., a Delaware
corporation, and sole member of IKON Receivables-2, LLC.
"Indemnified Party" means the Sole Member, any successor
member of the Company, the Manager, any successor manager of the Company, any
officer, agent, shareholder, director, employee or incorporator of the Sole
Member, any successor member, the Manager or any successor manager, or any
officer, manager, employee, organizer or agent of the Company.
"Indenture" means, collectively, the indentures entered into
or to be entered into between the Company, IOS Capital (or any other subsidiary
of IKON Office Solutions, Inc.) and the Trustee, as amended or supplemented from
time to time.
"Independent Director" shall mean an individual who has not
been for a period of 5 years prior to election to the board of directors of the
Manager and continuing through such
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time: (i) a director, officer or employee of any entity owning beneficially,
directly or indirectly, more than 5% of the outstanding shares of IOS Capital's
or the Manager's common stock, or (ii) a director, officer or employee of such
beneficial owner's subsidiaries or Affiliates, other than the Manager or any
other special purpose entity of IOS Capital (an "SPE"). An Independent Director
may not be a trustee in bankruptcy for any SPE or any Affiliate of a SPE.
"Insolvency Event" shall mean with respect to the Sole Member
or any successor member: (i) the entry of a decree or order by a court, agency
or supervisory authority having jurisdiction in the premises for the appointment
of a conservator, receiver or liquidator for such member, in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of such member's affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 90 consecutive days; (ii) the consent by such member to the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
such member or of or relating to substantially all of such member's property; or
(iii) if such member shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its obligations. The
foregoing definition of "Insolvency Event" is intended to replace and shall
supersede and replace the definition of "Bankruptcy" set forth in Sections
18-304 of the Act.
"Interest" shall mean the Sole Member's ownership interest in
the Company including, without limitation, the right of the Sole Member to the
profits and losses of the Company and to receive distributions of the Company's
assets, together with the obligations of the Sole Member to comply with all the
terms and provisions of this Agreement.
"Lease Receivables" shall have the meaning set forth in
Section 1.5(a).
"Manager" shall mean the Manager and any other Person selected
from time to time by the Sole Member pursuant to Section 5.1 as a manager of the
Company. The "Manager" shall be a manager of the Company within the meaning of
the Act.
"Net Cash Flow" shall mean, as of any date, any and all
amounts received by the Company on or before such date (other than Capital
Contributions), less (i) amounts previously distributed under Section 4.1, (ii)
unpaid costs and accrued expenses pursuant to Section 4.2 and any reasonable
reserves therefor and (iii) all other cash expenditures made by or on behalf of
the Company.
"Notes" shall mean the Notes of the Company issued pursuant to
any Registration Statement on Form S-3, as amended, filed by the Company.
"Person" shall mean any individual, partnership, corporation,
trust, limited liability company, association, joint venture, estate,
governmental entity or other legal person.
"Registration Statement" shall have the meaning set forth in
Section 1.5(a).
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"Securitization Documents" shall have the meaning set forth in
Section 1.5(i) of this Agreement.
"Secretary" means the Secretary of State of the State of
Delaware.
"Sole Member" shall have the meaning set forth in the preamble
to this Agreement.
"Special Member" means, upon such Person's admission to the
Company as a member of the Company pursuant to Section 6.4, the Person acting as
the 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. A Special Member is not the "Sole Member" for purposes of this
Agreement.
"Trustee" shall mean the trustee named in the Indenture.
ARTICLE III
CAPITAL CONTRIBUTIONS
Section 3.1. Contributions. The Sole Member shall contribute
concurrently with the execution of this Agreement or has already contributed the
property described in Exhibit B as its Capital Contribution to the Company and
shall from time to time contribute such other property as is described in the
Assignment and Servicing Agreement, as amended from time to time. Such
contribution is an absolute transfer and assignment of such property to the
Company, without recourse or warranty. The Manager has not made and shall not
make any Capital Contributions to the Company.
Section 3.2. Additional Contributions. The Sole Member shall
have no obligation to make additional contributions after the date hereof, but
may elect to do so from time to time.
ARTICLE IV
DISTRIBUTIONS
Section 4.1. Distributions of Net Cash Flow. Distributions of
Net Cash Flow shall be made to the Sole Member by the Manager at such times and
in such amounts as determined by the Manager, acting alone, provided such
distributions are not prohibited by any agreement to which the Company is a
party or the Act or other applicable law. The Manager shall not receive any
distribution of Net Cash Flow.
Section 4.2. Expenses of the Company. The Company shall pay
all costs and expenses incurred in connection with the Company's affairs (or
shall reimburse the Manager for having incurred any such out-of-pocket
expenses), including without limitation, all expenses of conducting the business
of the Company.
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ARTICLE V
MANAGEMENT
Section 5.1. Manager. (a) The Manager shall not be a member of
the Company and shall not own any Interest or any portion thereof, or any other
ownership interest in the Company, and, as such, shall not share in the
distributions of Net Cash Flow or the profits or losses of the Company. The
Manager shall be (i) a special purpose entity with at least two Independent
Directors on its board of directors and (ii) selected by the Sole Member from
time to time or at such time as a vacancy for any reason shall occur and shall
serve until a successor is selected or qualified. The Sole Member hereby selects
IKON Receivables Funding, Inc. as the initial Manager.
(b) The Manager, acting alone, without the approval or
authorization of the Sole Member, shall have full and exclusive management and
control of the business of the Company, including, without limitation, the power
to appoint Persons to act on behalf of the Company, to hire employees and agents
and appoint officers of the Company to perform such functions as from time to
time shall be delegated to such employees, agents, and officers by the Manager
and to determine the compensation of any employees, agents and officers of the
Company or to delegate some or all compensation decisions to officers or
employees of the Company.
(c) There shall be no change of Manager without the prior
confirmation from ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Rating
Services that such change will not result in either a downgrade or a withdrawal
of the then current ratings of the outstanding Notes.
Section 5.2. Resignation. The Manager may resign at any time
by giving written notice to the Sole Member, provided that the Manager may
resign only after a successor Manager meeting the requirements and having
similar restrictions in its certificate of incorporation or other charter
documents set forth in Section 5.1 has been appointed, has executed a
counterpart to this Agreement and has assumed the duties of the resigning
Manager and such resignation will not result in either a downgrade or a
withdrawal of the then current ratings of the outstanding Notes.
Section 5.3. Removal. The Manager may be removed with or
without cause by the Sole Member, provided that the Sole Member shall not remove
the Manager unless a successor manager meeting the requirements and having
similar restrictions in its certificate of incorporation or other charter
documents set forth in Section 5.1 has been appointed, has executed a
counterpart to this Agreement and has assumed the duties and obligations of the
removed Manager and such removal and succession will not result in either a
downgrade or a withdrawal of the then current ratings of the Notes.
Section 5.4. Compensation. The Manager shall receive such
compensation as shall from time to time be determined by the Sole Member and
shall be reimbursed by the Company for any reasonable out-of-pocket expenses
incurred by the Manager on behalf of the Company.
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Section 5.5. Limitation on Actions. (a) Notwithstanding any
other provision of this Agreement and, to the fullest extent permitted by law,
any provision of law that otherwise so empowers the Manager, the Manager shall
not have the power or authority, and shall not be authorized or empowered,
without (i) the prior written unanimous consent of all of the directors of the
Manager (including at least two Independent Directors) and (ii) the prior
written consent of the Member, to cause the Company to do any of the following:
(A) engage in any business or activity, including, without
limitation, the incurrence of any indebtedness, other than as
contemplated by the Securitization Documents or amend, alter, change or
repeal Section 1.5 of this Agreement hereto or this Section 5.5.
(B) incur any indebtedness, or assume or guaranty any
indebtedness of any other entity, other than (i) indebtedness
contemplated by the Securitization Documents and the performance of its
obligations under the Securitization Documents; and (ii) indebtedness
incurred in the ordinary course of the business of the Company.
(C) consolidate, convert or merge with or into any other
Person or convey or transfer all or substantially all of its properties
and assets to any other Person except as permitted by or in compliance
with the provisions of the Securitization Documents.
(D) dissolve or liquidate, in whole or in part, except as
set forth in Article IX, file a voluntary petition that commences a
case under Title 11 of the United States Code (or any successor
statutes) with respect to the Company, or consent to the institution of
bankruptcy or insolvency proceedings against the Company or file a
petition seeking, or consent to, relief under any applicable Federal or
state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or a substantial part of the property of the
Company, or make any assignment for the benefit of creditors, or admit
in writing its inability to pay the debts of the Company generally as
they become due, or take action in furtherance of any of the foregoing.
(b) No Manager nor any director of the Manager pursuant to
the requirements of this Section 5.5 shall, with regard to any matter
described in this Section 5.5 or Section 5.6, owe a fiduciary duty or
other obligation to the Sole Member (except as may specifically be
required by any applicable law); instead, such Manager or director's
fiduciary duty and other obligations with regard to any matter
described in this Section 5.5 or Section 5.6 shall, to the fullest
extent permitted by law, be owed to the Company including, without
limitation, the Company's creditors. Every member of the Company shall
be deemed to have consented to the foregoing by virtue of such member's
acceptance of interests therein, and no further act or deed of any
member of the Company shall be required to evidence such consent. In
addition, no Independent Director of the Manager may be removed unless
his or her successor has been duly elected.
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(c) No election shall be made by the Manager or any other
person to classify the Company as an association taxable as a corporation
pursuant to Section 301.7701-3 of the Treasury regulations.
Section 5.6. Sale or Purchase of Lease Receivables. The
Manager shall not have the power to sell or to purchase any Lease Receivables,
except pursuant to the Assignment and Servicing Agreement and subject to the
limitations in Section 1.5, unless the Manager has first gotten confirmation
from ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Rating Services that
such sale will not result in either a downgrade or a withdrawal of the then
current ratings of the Notes.
Section 5.7. Amendment to Certificate of Formation. Without
the affirmative vote of each member of the Manager's Board of Directors,
including, without limitation, the affirmative vote of the Independent Directors
of the Manager, and prior notice to ▇▇▇▇▇'▇ Investors Service, Inc. and Standard
& Poor's Rating Services, the Company shall not amend either this Agreement or
the Company's Certificate of Formation, as amended or restated from time to
time.
Section 5.8. Binding Authority. Only the Manager or its
delegates pursuant to Section 5.1 shall have the power and authority (subject to
the terms and conditions of this Agreement) to bind the Company.
Section 5.9. Company Separateness. In addition to the
foregoing, the Manager shall conduct the affairs of the Company in the following
manner so that: (i) the business and affairs of the Company will be managed by
or under the direction of the Manager; (ii) the Company will observe all
corporate formalities and will maintain separate bank accounts, corporate
records and books of account from those of any direct or ultimate parent of the
Company or any subsidiary or any other SPE or Affiliate of any such parent;
(iii) the Company will pay from its funds and assets all obligations and
indebtedness incurred by it; (iv) the Company's assets shall not be commingled
with those of any other entity except as permitted by the Securitization
Documents; (v) the Company shall maintain an office or area separate from any
direct, indirect or ultimate parent of the Company (which area may be within the
premises of the parent of the Company); (vi) the Company shall maintain an arm's
length relationship with its Affiliates and conduct all transactions with
Affiliates on commercially reasonable terms; (vii) the Company shall pay the
salaries of its own employees and maintain sufficient number of employees in
light of its contemplated business operations; (viii) the Company shall not
guarantee or become obligated for the debts of any other entity or hold out its
credit as being available to satisfy the obligations of others; (ix) the Company
shall not acquire obligations or securities of its member; (x) the Company shall
pay its expenses from its own funds and shall allocate fairly and reasonably any
overhead for shared office space; (xi) the Company shall use separate
stationery, invoices, and checks; (xii) the Company shall not pledge its assets
for the benefit of any other entity or make any loans or advances to any entity
except as contemplated by the Securitization Documents; (xiii) the Company shall
hold itself out as a separate entity; (xiv) the Company shall correct any known
misunderstanding regarding its separate entity; (xv) the Company shall maintain
adequate capital in light of its contemplated business operations; (xvi) the
Company shall maintain separate financial statements; (xvii) the Company shall
not become
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involved in the day to day management of any Affiliate; (xviii) the Company
shall operate so as not to be substantively consolidated with any Affiliate;
(xix) the Company shall not act as agent of any Affiliate; and (xx) the Company
shall conduct its own business in its own name.
ARTICLE VI
OBLIGATIONS AND/OR RIGHTS OF THE SOLE MEMBER AND MANAGER
Section 6.1. Liability of the Sole Member and Manager. Neither
the Sole Member nor the Manager shall be personally liable for any of the debts,
liabilities, contracts or other obligations of the Company solely by reason of
being the Sole Member or Manager of the Company.
Section 6.2. No Management Responsibility. The Sole Member
shall not take part in the management of the business or the affairs, or
transact any business for, the Company, except to the extent that its approval
or consent is expressly required under this Agreement for the taking of any
actions by or on behalf of the Company or of the Manager.
Section 6.3. No Authority to Act. The Sole Member shall not
have the authority to act on behalf of or bind the Company.
Section 6.4. Special Member. Upon the occurrence of any event
that causes the Sole Member to cease to be a member of the Company (other than
(i) upon an assignment by the Sole Member of all of its limited liability
company interest in the Company and the admission of the transferee pursuant to
Article VIII, or (ii) the resignation of the Member and the admission of an
additional member of the Company pursuant to Article VIII), the Person acting as
the Manager pursuant to Section 5.1 shall, without any action of any Person and
simultaneously with the Sole Member's 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. The Special Member may not 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 Manager pursuant to Section 5.1; provided, however, the Special
Member shall automatically cease to be a member of the Company upon the
admission to the Company of a substitute Sole Member appointed by the personal
representative of the Person that was the last Sole Member. The 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, the 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. The Special Member, in its
capacity as Special Member, may not bind the Company. Except as required by any
mandatory provision of the Act, the 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 the Special Member, the Person acting as the
Manager pursuant to Section 5.1 shall execute a counterpart to this Agreement.
Prior to its admission to the Company as Special
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Member, the Person acting as the Manager pursuant to Section 5.1 shall not be a
member of the Company.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Exculpation and Indemnification of the Sole
Member and Manager. (a) No Indemnified Party shall be liable to the Company for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Party in connection with any matter arising from, or
related to, or in connection with this Agreement or the Company's business or
affairs; provided, however, that the foregoing shall not eliminate or limit the
liability of any Indemnified Party if a judgment or other final adjudication
adverse to the Indemnified Party establishes that the Indemnified Party's acts
or omissions were in bad faith or involved intentional misconduct or a knowing
violation of law or that the Indemnified Party personally gained 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 each Indemnified Party against any losses,
claims, damages or liabilities to which the Indemnified Party may become subject
in connection with any matter arising from, related to, or in connection with,
this Agreement or the Company's business or affairs; provided, however, that no
indemnification may be made to or on behalf of any Indemnified Party if a
judgment or other final adjudication adverse to the Indemnified Party
establishes (i) that the Indemnified Party's acts or omissions giving rise to
such losses, claims, damages or liabilities were committed in bad faith or
involved intentional misconduct or knowing violation of law 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; provided, further that such indemnification
shall be subject to the terms of, and shall be subordinate to the obligations
payable under the Securitization Documents.
(c) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Party defending any
claim, demand, action, suit or proceeding shall, from time to time, be advanced
by the Company prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Company of an undertaking by or on behalf
of the Indemnified Party to repay such amount if it shall be determined that the
Indemnified Party is not entitled to be indemnified as authorized in this
Section 7.1.
(d) Notwithstanding anything else contained in this
Agreement, the indemnity obligations of the Company under paragraph (b) above
shall:
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(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.
(e) This Article VII shall survive any termination of this
Agreement and the dissolution of the Company.
ARTICLE VIII
TRANSFERABILITY OF SOLE MEMBER'S INTERESTS
Section 8.1. Restriction on Transfer. The Sole Member may not
transfer its Interest unless such transfer is involuntary or by operation of
law, is not prohibited by any of the Securitization Documents or does not cause
the total number of beneficial owners of Interests to exceed ninety-nine (99).
Section 8.2. Transfer for Security. The Sole Member may not
pledge, mortgage or otherwise hypothecate all or any part of its right, title
and interest in cash distributions to be received from the Company, except as
provided by the Securitization Documents.
Section 8.3. Substitute Member. If the Sole Member assigns all
or any part of its Interest pursuant to Section 8.1, the assignee shall be
admitted to the Company as a member of the Company upon the assignee's obtaining
the consent of the Manager to such admission and the assignee's executing a
counterpart of this Agreement, provided that prior notice is given to ▇▇▇▇▇'▇
Investors Service, Inc. and Standard & Poor's Ratings Services. If the Sole
Member assigns all of its interest pursuant to Section 8.1, the Sole Member
shall cease to be a member of the Company immediately after the admission of the
assignee to the Company as member of the Company and the Company shall be
continued without dissolution.
Section 8.4. Resignation. Other than as set forth in Section
8.1, the Sole Member shall not resign from the Company.
ARTICLE IX
DISSOLUTION AND LIQUIDATION
Section 9.1. Dissolution. The Company shall be dissolved and
its affairs shall be wound up solely upon the occurrence of any of the following
events, provided however, to the fullest extent permitted by law, that the
Company may not dissolve so long as the Notes are outstanding:
(a) the happening of any event that makes it
unlawful to carry on the business of the Company;
(b) judicial dissolution pursuant to the Act;
12
(c) at any time there are no members of the Company,
unless the Company is continued without dissolution in
accordance with the Act or Section 9.2 below; or
(d) subject to the requirements of the
Securitization Documents, the Company is dissolved by the
Manager with the unanimous written consent of its entire board
of directors (including at least two Independent Directors)
and the Sole Member as provided in Section 5.5. To the fullest
extent permitted by law, the Sole Member shall not have the
power or authority, acting alone, to dissolve the Company and
wind up its affairs.
Section 9.2. Continuation of Company. Notwithstanding any
other provision of this Agreement, the occurrence of an Insolvency Event with
respect to the Sole Member shall not cause the Sole Member to cease to be a
member of the Company and upon the occurrence of such an event, the business of
the Company shall continue without dissolution. In the event of the dissolution
of the Sole Member or the occurrence of any other event that causes the Sole
Member to cease to be a member of the Company at a time when the Sole Member is
the only member of the Company, to the fullest extent permitted by law, the
personal representative of the Sole Member shall, within 90 days of such event,
agree in writing to continue the Company and to the admission of such personal
representative or its nominee or designee as a member of the Company effective
as of the dissolution of the Sole Member. Upon such admission, the Company shall
be continued without dissolution.
Section 9.3. Winding Up and Liquidation of the Company. Upon
dissolution, the Company shall continue solely for the purpose of winding up its
affairs in an orderly manner, liquidating its assets and satisfying the claims
of creditors and the Sole Member. Upon dissolution, a full accounting of the
assets and liabilities of the Company shall be taken, and the Company assets
shall be distributed as promptly as possible as hereinafter provided:
(a) first, to the satisfaction (or the making of
reasonable provision for the satisfaction) of such debts and
liabilities of the Company (or reserves therefor), including
any necessary expenses of liquidation, except any debts,
liabilities and loans that may be due to the Sole Member, in
the order of priority as provided by law; and
(b) second, to the satisfaction (or the making of
reasonable provision for the satisfaction) of any debts and
liabilities that may be due to the Sole Member and to the
satisfaction (or the making of reasonable provision for the
satisfaction) of the unpaid principal balance and the interest
accrued thereon on loans, if any, made by the Sole Member to
the Company.
All of the remaining assets of the Company shall be distributed to the Sole
Member.
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ARTICLE X
POWER OF ATTORNEY
Section 10.1. Manager as Attorney-In-Fact. The Sole Member
hereby makes, constitutes, and appoints the Manager with full power of
substitution and resubstitution, its true and lawful attorney-in-fact for it and
in its name, place, and stead and for its use and benefit, to sign, execute,
certify, acknowledge, swear to, file, and record (a) all limited liability
company certificates, assumed name or similar certificates, and other
certificates and instruments (including counterparts of this Agreement) which
the Manager deems necessary in its reasonable discretion to be filed by the
Company under the laws of the State of Delaware or any other state or
jurisdiction in which the Company is doing business; (b) any and all amendments
or changes to the instruments described in clause (a), as now or hereafter
amended, which the Manager may deem necessary in its reasonable discretion to
effect a change or modification of the Company in accordance with the terms of
this Agreement, including, without limitation, amendments or changes to reflect
any amendments adopted by the Sole Member in accordance with the terms of this
Agreement; (c) all certificates of cancellation and other instruments which the
Manager deems necessary in its reasonable discretion to effect the dissolution
and termination of the Company pursuant to the terms of this Agreement; and (d)
any other instrument which is now or may hereafter be required by law to be
filed on behalf of the Company or is deemed necessary by the Manager in its
reasonable discretion to carry out fully the provisions of this Agreement in
accordance with its terms, in each case, however, subject to the provisions of
Section 5.5. The Sole Member authorizes such attorney-in-fact to take any
further action which such attorney-in-fact shall reasonably consider necessary
in connection with any of the foregoing, hereby giving such attorney-in-fact
full power and authority to do so and perform each and every act or thing
whatsoever requisite or advisable to be done in connection with the foregoing as
fully as the Sole Member might or could do personally, and hereby ratifying and
confirming all that any such attorney-in-fact shall lawfully do or cause to be
done by virtue thereof or hereof.
Section 10.2. Nature of Special Power. The power of attorney
granted pursuant to this Article X:
(a) is a special power of attorney coupled with an
interest and is irrevocable;
(b) may be exercised by any such attorney-in-fact by
identifying the Sole Member executing any agreement,
certificate, instrument or other document with the single
signature of any such attorney-in-fact for the Sole Member;
and
(c) shall not be affected by and shall survive the
bankruptcy, insolvency, dissolution, disability, incapacity or
cessation of existence of the Sole Member and shall survive
the delivery of an assignment by the Sole Member of its
interest in the Company, except that where an assignee of the
Sole Member is admitted as a substituted member, the power of
attorney shall survive the delivery of such assignment for the
sole purpose of enabling any such attorney-in-fact to effect
such substitution.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. Notices. Any notices or communications hereunder
shall be in writing, and may be either delivered personally (which shall include
deliveries by courier), by facsimile transmission or mailed, postage prepaid, by
certified or registered mail, return receipt requested, directed to the parties
at their respective addresses or fax numbers set forth in Exhibit A. Any party
hereto may designate a different address to which notices and demands shall
thereafter be directed by written notice given in the same manner and directed
to the Company at is office hereinabove set forth.
Section 11.2. Amendments. Subject to Section 5.5 and Section
5.7, this Agreement shall be amended only by the written consent of the Sole
Member and the Manager.
Section 11.3. Headings. The headings of the various Articles
and Sections herein are for the convenience of reference only and shall not
define or limit any of the terms or provisions hereof.
Section 11.4. Severability. If any one or more of the
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such provisions or terms shall be deemed severable from the
remaining provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement.
Section 11.5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 11.6. Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts together constitute
one and the same instrument.
Section 11.7. Effect of Agreement. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, and their
respective successors and assigns.
Section 11.8. Integration. This Agreement constitutes the
entire agreement among the parties pertaining to the subject matter thereof and
supersedes all prior agreements and understandings and contemporaneous
agreements and understandings pertaining thereto.
Section 11.9. Enforceability. Notwithstanding any other
provision of this Agreement, the Member agrees that this Agreement constitutes a
legal, valid and binding agreement of the Member, and is enforceable against the
Member by the Manager and the Independent Directors, in accordance with its
terms. In addition, the Independent Directors shall be intended beneficiaries of
this Agreement.
15
IN WITNESS WHEREOF, this Limited Liability Company Agreement
has been executed as of the date first above written.
IKON RECEIVABLES-2, LLC,
as Sole Member
By: IKON Receivables Funding, Inc., as
Manager
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Treasurer
IKON Receivables Funding, Inc., as
Manager
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Treasurer
EXHIBIT A
ADDRESSES OF THE SOLE MEMBER AND THE MANAGER
Address:
--------
Sole Member: IKON Receivables-2, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Manager: IKON Receivables Funding, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT B
CAPITAL CONTRIBUTION OF SOLE MEMBER
1. Lease Receivables pursuant to Section 3.1 of this Limited Liability
Company Agreement.
2. Cash in the amount of $1000.00.