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Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
COPELCO CAPITAL FUNDING LLC 99-1
This Limited Liability Company Agreement, dated as of February
__, 1999, is adopted by Copelco Capital, Inc., a Delaware corporation
("COPELCO"), and Copelco Manager, Inc., a Delaware corporation ("Copelco
Manager"), as the Members (the "Members"), and Copelco Manager (in such
capacity, the "Manager"), acting as the initial Manager.
WHEREAS, the Members and the Manager desire to form a limited
liability company pursuant to the terms hereof;
NOW, THEREFORE, the Members and the Manager in consideration
of the mutual covenants set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms.
"Act" means the Delaware Limited Liability Company Act,
Delaware Code Title 6, Sections 18-101 et seq., as amended from time to time.
"Affiliate" when used with respect to a Person shall mean any
other Person controlling, controlled by, or under common control with, such
Person.
"Agreement" shall mean this Limited Liability Company
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
Assignment and Servicing Agreement" shall mean that certain
Assignment and Servicing Agreement dated as of March 1, 1999 between COPELCO and
the Company.
"Associate" shall mean, with respect to the definition of
Independent Person, (1) a corporation or organization of which such Independent
Person is an officer, director, member or partner or is, directly or indirectly,
the beneficial owner of 10 percent or more of any class of equity securities,
(2) any trust or other estate in which an Independent Person serves as trustee
or in a similar capacity, or (3) any relative or spouse of an Independent
Person, or any relative of such spouse, who has the same home as an Independent
Person.
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"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 a Member (or the predecessor holder of
the Interest of such Member).
"Company" shall mean the limited liability company formed
hereby.
"COPELCO" shall have the meaning set forth in the preamble to
this Agreement.
"Dissolution and Termination" shall be deemed to have occurred
upon the earlier of the adoption of a plan of liquidation by the Manager and the
Members in accordance with this Agreement or the effective date of dissolution
in accordance with the Act.
"Indemnified Party" means the Members, the Manager, any
officer, agent, shareholder, director, employee or incorporator of the Members
or the Manager, or any officer, manager, employee, organizer or agent of the
Company.
"Indenture" shall mean that certain Indenture dated as of
March 1, 1999 between the Company, COPELCO and the Trustee.
"Independent Director" shall mean a director of the Manager,
not less than two (2) in number, who shall not be, and for the continuation of
his or her service as Independent Director, is not: (1) a member, stockholder,
director, officer, employee, Affiliate, Associate, customer or supplier of, or a
Person that has received any benefit in any form whatever from, the Company or
any of its Affiliates or Associates, (2) a Person owning beneficially, directly
or indirectly, any interest in the Company, or a stockholder, director, officer,
employee, Affiliate, Associate, customer or supplier thereof, or a Person that
has received any direct economic benefit in any form whatever from, or a Person
that has provided any service in any form whatever to, such beneficial owner or
any of such beneficial owner's Affiliates or Associates; provided, however, that
no Person shall be excluded from qualifying as an Independent Person solely by
reason of serving as a director or manager of one or more other Affiliates of
COPELCO that are special purpose, bankruptcy remote entities.
"Insolvency Event" shall mean with respect to a Member: (i)
the entry of a decree or order by a court or agency for a 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) such Member shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage
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of any applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors or voluntarily suspend payment of its obligations.
"Interest" shall mean the Members' ownership interest in the
Company.
"Manager" shall initially have the meaning set forth in the
preamble to this Agreement, and thereafter, as applicable, shall mean the Person
selected by the Members pursuant to Section 5.1 as the manager) of the Company.
"Members" shall initially have the meaning set forth in the
preamble to this Agreement. Thereafter, "Member" shall mean a Person admitted as
a member of the Company as provided under Section 18-301 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 (iii) all other
cash expenditures made by or on behalf of the Company.
"Person" shall mean any individual, partnership, corporation,
trust, limited liability company, association, joint venture, estate,
governmental entity or other legal person.
"Secretary" means the Secretary of State of Delaware.
"Trustee" shall mean Manufacturers and Traders Trust Company,
as Trustee under the Indenture.
ARTICLE II
DEFINITIONS
Section 2.1 Formation of Limited Liability Company. The Members have
resolved to form a limited liability company (the "Company") pursuant to the
Act. For that purpose, COPELCO has caused a Certificate of Formation to be
executed and filed with the Secretary. Each Person from time to time serving as
a Manager or as an agent of the Manager shall be, and hereby is, designated as
an "authorized person" within the meaning of Section 18-204 of the Act, and is
authorized and empowered to execute certificates to be filed with the Secretary
under the Act. The Manager may assign, in writing, titles (including, without
limitation, President, Vice President, Secretary and Treasurer) to any such
person. Unless the Manager withholds the same in such written assignment of
title or the delegation is otherwise precluded by this Agreement, if the title
is commonly used for officers of a business corporation formed under the
Delaware General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the power, authority and duties that are
normally associated with that office. Each of the Members shall be, and hereby
is, admitted as a member of the Company, and each of the Members' Interest in
the Company shall be, and hereby is,
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authorized and issued. The Company is authorized to issue 1000 Membership
Interests of which 99 such units have been issued to COPELCO and 1 unit has been
issued to Copelco Manager. All Membership Interests in the Company may be
evidenced by a certificate of limited liability company interest issued by the
Company. Nothing contained herein shall preclude the Members from pledging its
Membership Interests to the Trustee. Notwithstanding anything to the contrary
herein, no Membership Interest may be issued or transferred to (i) an "employee
benefit plan" (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) that is subject to Title I of
ERISA, (ii) a "plan" (within the meaning of Section 4975 (e)(1) of the Internal
Revenue Code of 1986, as amended (the "Code")) that is subject to Section 4975
of the Code, or (iii) any person acting on behalf of or investing the assets a
plan described in (i) or (ii).
Section 2.2. Company Name and Principal Office. The name of the Company
shall be "COPELCO CAPITAL Funding LLC 99-1". The Manager shall have the power
and authority and is hereby authorized and empowered, at any time to change the
name of the Company. The principal business and chief executive office of the
Company shall be ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇. The
business of the Company may also be conducted at such additional place or places
as the Members may determine.
Section 2.3. Office of and Agent for Service of Process. The registered
office of the Company in Delaware shall be maintained at Corporation Service
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. The Company's agent
for service of process at such address shall be Corporation Service Company. The
Manager shall have the power and the authority, and is hereby authorized and
empowered to change, at any time and from time to time, the location of such
registered office and/or such registered agent upon compliance with the Act.
Section 2.4. Term. The Company has been formed and shall commence on
the date the Certificate of Formation was filed with the Secretary, namely
December 29, 1998. The Company shall have a perpetual existence until
cancellation of the Company's Certificate of Formation.
Section 2.5. Purpose of Company. The purpose to be conducted or
promoted by the Company is to engage in the following activities:
(a) to acquire and own lease contracts of healthcare,
manufacturing and business equipment (together with all accessories, additions,
repairs and parts constituting a part thereof and all accessions thereto, the
"Equipment"), the monies due thereunder, the Equipment and interests therein,
insurance policies related thereto or rights to receive the proceeds thereof,
and other related rights and assets, and beneficial interests in any or all of
the foregoing (collectively, "Assets");
(b) to acquire, own, hold, service, lease, re-lease, transfer,
sell, assign, pledge, invest, lend and otherwise deal with Assets and interests
in Assets, cash, marketable securities, deposit or investment accounts, demand
notes and any proceeds or further rights associated with any of the foregoing;
(c) to issue and sell notes collateralized by any or all of
the Assets pursuant to the Indenture;
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(d) to hold and enjoy all of the rights and privileges as the
owner or otherwise of the Assets;
(e) to enter into, execute, deliver and perform its
obligations under the Assignment and Servicing Agreement, the Indenture or other
agreement related to the Assets (the "Securitization Agreements");
(f) to enter into and perform obligations under any
intercompany services agreement or management agreement with the Members, the
Manager or any affiliate of either thereof; and
(g) to engage in any activity and to exercise any powers
permitted to limited liability companies under the laws of the State of Delaware
that are related or incidental to the foregoing and necessary, convenient or
advisable to accomplish the foregoing.
The Company shall have the power and authority, and is hereby
authorized and empowered, to engage in the activities set forth in this Section
2.5, and activities that are required or convenient for the performance of any
of its obligations pursuant to any of the agreements to which it is a party
referred to in this Section 2.5 and other activities approved in accordance with
Section 5.5.
Section 2.6. Addresses of the Members and the Manager. The addresses of
the Members and the Manager are set forth in EXHIBIT A.
Section 2.7. Exclusivity. No Person may be admitted to the Company as
an additional or substitute member, except as expressly set forth in this
Agreement.
ARTICLE III
CAPITAL CONTRIBUTIONS
Section 3.1. Contributions. The Members shall contribute concurrently
with the execution of this Agreement or has already contributed such amount as
is represented by the property described in EXHIBIT B as its Capital
Contribution to the Company. Such contribution is an absolute transfer and
assignment of such property to the Company, without recourse or warranty. The
Manager has not made and shall not make any Capital Contributions to the
Company.
Section 3.2. Additional Contributions. The Members shall have no
obligation to make additional contributions after the date hereof, but may elect
to do so from time to time.
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ARTICLE IV
DISTRIBUTIONS
Section 4.1. Distributions of Net Cash Flow. Distributions of Net Cash
Flow shall be made to the Members by the Manager at such times and in such
amounts as determined by the Manager, provided such distributions are not
prohibited by any agreement to which the Company is a party or the Act.
Section 4.2. Expenses of the Company. The Company shall pay all costs
and expenses incurred in connection with the Company's affairs (or shall
reimburse the Manager for having incurred any such out-of-pocket expenses),
including, without limitation, all expenses of conducting the business of the
Company. The obligation to pay such costs and expenses shall be limited to the
available assets of the Company.
ARTICLE V
MANAGEMENT
Section 5.1. Manager. (a) The Members shall appoint the Manager and
hereby appoint the Copelco Manager as the initial Manager.
(b) The Manager, without the approval or authorization of any
Member, shall have full and exclusive management and control of the business and
affairs of the Company, including, without limitation, the power and authority
to appoint Persons to act on behalf of the Company, to hire employees and agents
and appoint officers to perform such functions as from time to time shall be
delegated to such employees, agents, and officers by the Manager and to
determine the compensation of any employees, agents and officers of the Company
or to delegate some or all compensation decisions to officers or employees of
the Company. Except as otherwise expressly provided in this Agreement, in the
event that more than one (1) Manager is appointed and acting in such capacity at
any time, the Manager shall in all cases act as a group, with a majority vote or
majority consent of the Managers then in office required to take any action. The
Manager) may adopt such rules and regulations for the conduct of their meetings
and the management of the Company not inconsistent with this Agreement and the
Act.
(c) There shall be no change of Manager without prior
confirmation from ▇▇▇▇▇'▇ Investor Service, Inc., Duff & ▇▇▇▇▇▇ Credit Rating
Co. and Fitch IBCA, Inc. that such change will not result in either a downgrade
or withdrawal of the then current ratings of the outstanding notes issued by the
Company.
Section 5.2. Resignation. The Manager may resign at any time by giving
written notice to the Members; provided that the Manager may resign only after
(a) a successor Manager meeting the requirements and having similar restrictions
in its certificate or other charter documents as the resigning manager and meets
the requirements set forth in Section 5.1 and (b) the successor Manager has
executed a counterpart to this Agreement and has assumed the duties and
obligations of the resigning Manager.
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Section 5.3. Removal. Any Manager may be removed with or without cause
by the Members by written notice to the Manager being removed at any time. Such
removal shall become effective only upon acceptance of appointment by a
successor Manager meeting the requirements set forth in Section 5.1.
Section 5.4. Compensation. The Manager shall receive such compensation
as shall from time to time be determined by the Members and shall be reimbursed
by the Company for any reasonable out-of-pocket expenses incurred by the Manager
on behalf of the Company.
Section 5.5. Limitation on Actions. Notwithstanding any other provision
of this Agreement and, to the fullest extent permitted by law, any provision of
law that otherwise so empowers the Manager, the Manager shall not have the power
or authority, and shall not be authorized or empowered, without the prior
written unanimous consent of all of the Manager and the prior written consent of
all of the Members, and any consent of any third party required under any
agreement(s) referred to in Section 2.5, to cause the Company to do any of the
following:
(a) engage in any business or activity, including, without
limitation, the incurrence of any indebtedness, other than described in Section
2.5 or amend, alter, change or repeal Section 2.5 of this Agreement hereto or
this Section 5.5;
(b) incur any indebtedness, or assume or guaranty any
indebtedness of any other entity, other than (i) indebtedness incurred or
guaranteed pursuant to transactions set forth in Section 2.5 in connection with
the issuance and sale of the notes referred to in Section 2.5(c) and the
performance of its obligations under the agreements referred to in Section 2.5;
and (ii) indebtedness incurred in the ordinary course of the business of the
Company;
(c) consolidate, convert or merge with or into any other
Person or convey or transfer all or substantially all of its properties and
assets to any other Person except as permitted by or in compliance with the
provisions of the agreement(s) referred to in Section 2.5; or
(d) dissolve or liquidate, in whole or in part, except as set
forth in Article IX, file a voluntary petition that commences a case under Title
11 of the United States Code (or any successor statutes) with respect to the
Company, or consent to the institution of bankruptcy or insolvency proceedings
against the Company or file a petition seeking, or consent to, relief under any
applicable Federal or state law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or a substantial part of the property of the
Company, or make any assignment for the benefit of creditors, or admit in
writing its inability to pay the debts of the Company generally as they become
due, or take action in furtherance of any of the foregoing.
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Section 5.6. Conduct of Business. The Company shall conduct its affairs
in accordance with the following provisions:
(a) it shall maintain separate records and books of account
from those of any direct or ultimate parent of any Affiliate and any other
Person;
(b) it shall not commingle the Company's assets with those of
any Affiliate;
(c) its Members shall hold meetings, as appropriate to
authorize all action on behalf of the Company and observe all other
organizational formalities of the Company;
(d) it shall not become involved in the day to day management
of any Affiliate;
(e) it shall operate so as not to be substantively
consolidated with any Affiliate;
(f) it shall maintain its assets separately from those of any
Affiliate or any other Person (including through the maintenance of a separate
bank account);
(g) it shall hold itself out as a separate entity from any
Affiliate and shall conduct business in its own name on its own stationary;
(h) it shall not act as the agent of any Affiliate;
(i) it shall pay its own expenses from its own funds,
including fairly allocating expenses shared with an affiliate;
(j) it shall maintain adequate capital in light of its
contemplated business activities; and
(k) it shall ensure that any financial transaction between the
Company and any of its affiliates shall be on commercially reasonable terms.
Section 5.7. Binding Authority. Only the Manager (and any officers
appointed pursuant to Section 2.1 hereof) shall have the power and authority
(subject to the terms and conditions of this Agreement) to bind the Company.
ARTICLE VI
OBLIGATIONS AND/OR RIGHTS OF
THE MEMBERS AND THE MANAGER
Section 6.1. Liability of the Members and the Manager. Neither the
Members nor the Manager shall be personally liable for any of the debts,
liabilities, contracts or other
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obligations of the Company solely by reason of being a Members or a Manager of
the Company.
Section 6.2. No Management Responsibility. The Members shall not take
part in the management of the business or the affairs, or transact any business
for, the Company, except to the extent that its approval or consent is expressly
required under this Agreement for the taking of any actions by or on behalf of
the Company.
Section 6.3. No Authority to Act. The Members shall not have the
authority to act on behalf of or bind the Company.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Exculpation and Indemnification of the Members and the
Manager. (a) No Indemnified Party shall be liable to the Company for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Party in connection with any matter arising from, or related
to, or in connection with this Agreement or the Company's business or affairs;
provided, however, that the foregoing shall not eliminate or limit the liability
of any Indemnified Party if a judgment or other final adjudication adverse to
the Indemnified Party establishes that the Indemnified Party's acts or omissions
were in bad faith or involved intentional misconduct or a knowing violation of
law or that the Indemnified Party personally gained a financial profit or other
advantage to which the Indemnified Party was not legally entitled.
(b) The Company shall, to the fullest extent permitted by the
Act, indemnify and hold harmless, and advance expenses to, each Indemnified
Party against any losses, claims, damages or liabilities to which the
Indemnified Party may become subject in connection with any matter arising from,
related to, or in connection with, this Agreement or the Company's business or
affairs; provided, however, that no indemnification may be made to or on behalf
of any Indemnified Party if a judgment or other final adjudication adverse to
the Indemnified Party establishes (i) that the Indemnified Party's acts or
omissions giving rise to such losses, claims, damages or liabilities were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated or (ii) that the
Indemnified Party personally gained a financial profit or other advantage to
which the Indemnified Party was not legally entitled; provided, further, that
such indemnification shall be subject to the terms of, and shall be subordinate
to the obligations (if any) payable under, the agreements referred to in Section
2.5 to which the Company is a party.
(c) Notwithstanding anything else contained in this Agreement,
the indemnity obligations of the Company under paragraph (b) above shall:
(i) be in addition to any liability that the Company may
otherwise have;
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(ii) inure to the benefit of the successors, assigns, heirs
and personal representatives of each Indemnified Party; and
(iii) be limited to the assets of the Company.
(d) This Article VII shall survive any termination of this
Agreement and the dissolution of the Company.
ARTICLE VIII
TRANSFERABILITY OF MEMBER'S INTERESTS
Section 8.1. Restriction on Transfer. No Member may sell or otherwise
transfer its Interest unless such transfer is: (i) involuntary, (ii) by
operation of law, (iii) is not prohibited by any agreement referred to in
Section 2.5 hereof or (iv) is expressly permitted pursuant to Section 2.1
hereof.
Section 8.2. Transfer for Security. Except (i) as otherwise permitted
pursuant to Section 2.1 hereof, or (ii) as permitted by or in compliance with
the provisions of the agreements referred to in Section 2.5, no Member may
pledge, mortgage or otherwise hypothecate all or any part of its right, title
and interest in distributions to be received from the Company.
ARTICLE IX
DISSOLUTION AND LIQUIDATION
Section 9.1. Dissolution. The Company shall be dissolved and its
affairs shall be wound up solely upon the occurrence of any of the following
events:
(a) the happening of any event that makes it unlawful to carry
on the business of the Company;
(b) judicial dissolution pursuant to the Act; or
(c) subject to the requirements of each agreement referred to
in Section 2.5 to which the Company is a party, the Company is dissolved by the
unanimous written consent of the Manager) and the Members as provided in Section
5.5. Neither the Members acting alone or the Members acting with less than all
of the Manager (if more than one (1) is appointed pursuant to Section 5.1 of
this Agreement) shall have the power or authority, to dissolve the Company and
wind up its affairs; or
(d) there is no Member.
Section 9.2. Continuation of Company. In the event of the dissolution,
bankruptcy or Insolvency Event of the Members, the Company shall continue and
shall not dissolve, but Copelco Financial Services Group, Inc., or any other
entity designated by Copelco Financial Services Group, Inc., shall, effective
immediately prior to the happening of such event, be admitted as a Member of the
Company, but shall not have
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any Membership Interest or any portion thereof. The Manager shall not have the
power or authority to dissolve the Company pursuant to Section 18-801(b) of the
Act.
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 Members. In so doing, a full accounting of the assets and
liabilities of the Company shall be taken and the Company's assets shall be
distributed as promptly as possible as hereinafter provided:
(a) to the payment (or the making of reasonable provision for
the payment) of such debts and liabilities of the Company (or reserves
therefor), including any necessary expenses of liquidation, except any debts,
liabilities and loans that may be due to the Members, in the order of priority
as provided by law; and
(b) to the payment (or the making of reasonable provision for
the payment) of any debts and liabilities that may be due to the Members and to
the payment (or the making of reasonable provision for the payment) of the
unpaid principal balance and the interest accrued thereon on loans, if any, made
by the Members to the Company.
All of the assets of the Company shall be distributed on dissolution.
ARTICLE X
POWER OF ATTORNEY
Section 10.1. Manager as Attorney-In-Fact. Subject, at all times and in
all cases to the provisions of Section 5.5, each of the Members hereby makes,
constitutes, and appoints the Manager, with full power of substitution and
resubstitution, its true and lawful attorneys-in-fact for it and in its name,
place, and stead and for its use and benefit, to sign, execute, certify,
acknowledge, swear to, file, and record (a) all limited liability company
certificates, assumed name or similar certificates, and other certificates and
instruments (including counterparts of this Agreement) which the Manager deems
necessary in its reasonable discretion to be filed by the Company under the laws
of the State of Delaware or any other state or jurisdiction in which the Company
is doing or intends to do business; (b) any and all amendments or changes to the
instruments described in clause (a), as now or hereafter amended, which the
Manager may deem necessary in its reasonable discretion to effect a change or
modification of the Company in accordance with the terms of this Agreement,
including, without limitation, amendments or changes to reflect any amendments
adopted by the Members 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. Each of the Members 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
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foregoing, hereby giving such attorney-in-fact full power and authority to do
and perform each and every act or thing whatsoever requisite or advisable to be
done in connection with the foregoing as fully as the Members might or could do
personally, and hereby ratifying and confirming all that any such
attorneys-in-fact shall lawfully do or cause to be done by virtue thereof or
hereof.
Section 10.2. Nature of Special Power. The power of attorney granted
pursuant to this Article X:
(a) is a special power of attorney coupled with an interest
and is irrevocable;
(b) may be exercised by all such attorney-in-fact by
identifying the Members executing any agreement, certificate, instrument or
other document with the signature of a duly authorized officer of such
attorneys-in-fact for such Members; and
(c) shall not be affected by and shall survive the bankruptcy,
insolvency, dissolution, disability, incapacity or cessation of existence of the
Members and shall survive the delivery of an assignment by the Members of its
interest in the Company, except that where an assignee of the Members is
admitted as a substituted Members, the power of attorney shall survive the
delivery of such assignment for the sole purpose of enabling all such
attorney-in-fact to effect such substitution.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. Notices. Any notices or communications hereunder shall be
in writing, and may be either delivered personally (which shall include
deliveries by courier), by facsimile transmission or mailed, postage prepaid, by
certified or registered mail, return receipt requested, directed to the parties
at their respective addresses or fax numbers set forth in EXHIBIT A. Any party
hereto may designate a different address to which notices and demands shall
thereafter be directed by written notice given in the same manner and directed
to the Company at its office hereinabove set forth.
Section 11.2. Amendments. This Agreement shall be amended only by the
written consent of the Members and the Manager; provided, however, that this
Section 11.2 and Sections 5.1, 5.2 and 5.4 may not be amended
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
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shall in no way affect the validity or enforceability of the other provisions of
this Agreement.
Section 11.5. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.6. Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
Section 11.7. Effect of Agreement. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, and their respective successors
and assigns.
Section 11.8. Integration. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements and understandings and contemporaneous
agreements and understandings pertaining thereto.
IN WITNESS WHEREOF, this Limited Liability Company Agreement
has been executed as of the date first above written.
COPELCO CAPITAL, INC., as a Member
By:________________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Vice President, Chief Financial Officer
and Treasurer
COPELCO MANAGER, INC., as a
Member and the Manager
By:________________________________________
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Vice President
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EXHIBIT A
ADDRESSES OF THE MEMBERS AND THE MANAGER
Copelco Capital, Inc., as a Member
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Copelco Manager, Inc., as a Member and the Manager
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EXHIBIT "B"
CAPITAL CONTRIBUTION OF MEMBERS
Copelco Capital, Inc.: [$ 990.00]
Copelco Manager, Inc.: [$ 10.00]
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